| | | | | NCAT Appeal Panel Decisions Digest Issue 4 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 April 2021: - Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 – In which the Appeal Panel dismissed the appeal of a landlord who claimed to have only consented to consent orders being made at first instance because of a misstatement of law by the Tribunal.
- The Owners – Strata Plan No 80412 v Vickery [2021] NSWCATAP 98 – In which the Appeal Panel dismissed the appeal of the Owners Corporation, which argued that the respondent lot owner was barred from commencing proceedings in April 2018 because he first became aware of loss of rent from water damage as early as 2013, and was thereby barred by a statutory limitation period.
- Aboriginal Housing Office v Fernando [2021] NSWCATAP 95 – In which the Appeal Panel allowed the appeal of the Aboriginal Housing Office against a decision of the Tribunal to refuse its application for compensation for damage to the property the respondent tenant inhabited. This was because the tenancy remained on foot and therefore the appellant had no cause of action upon which to base a claim for compensation. The Appeal Panel found that a cause of action arose upon the breach of the tenancy conditions, and the Tribunal has jurisdiction to grant compensation.
- Pan v Malveholm [2021] NSWCATAP 101 – In which the Appeal Panel allowed the appeal of a landlord from an order of the Consumer and Commercial Division that the landlord pay the tenants a refund of excessive rent, due to a reduction or withdrawal by the landlord of certain services or facilities provided with the residential premises, in addition to compensation for damage to clothing.
- Ruddick v Rossiter [2021] NSWCATAP 87 – In which the Appeal Panel dismissed an appeal from a decision in the Consumer and Commercial Division relating to a dispute over the purposes of a quote for repair to a motor vehicle.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Social Housing
M Harrowell, Deputy President; K Rosser, Principal Member
In sum: The Appeal Panel dismissed the appeal of a landlord who claimed to have only consented to consent orders being made at first instance because of a misstatement of law by the Tribunal.
Facts: The appellant (the landlord) sought termination, or alternatively specific performance, at the Consumer and Commercial Division due to the respondent’s (the tenant) failure to keep the relevant premises reasonably clean. At the hearing, the Tribunal mistakenly drew the attention of the parties to Pt 6A of the Residential Tenancies Regulation 2019 (NSW), which requires 90 days notice for a notice of termination of a tenancy. The Tribunal erroneously said that the termination notice was therefore invalid. However the definition of a landlord in reg 41A “does not include a landlord who is a social housing provider”. The landlord appealed on the basis of prejudgment bias, denial of procedural fairness or because consent of the landlord is in some way vitiated by what occurred ([1]-[9], [12], [27]).
Alternatively, the landlord submitted that there was non-compliance with s 59(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The landlord argued that the Tribunal had no power to make orders by consent, as this power was found solely within s 59, and contended s 59 regulates the making of any order by consent, including at an oral hearing. In effect, the landlord submitted that it is the only power of the Tribunal to make orders other than upon determination of a dispute following a contested hearing ([80], [96]).
Held (dismissing the appeal):
(i) The error of the Tribunal was obvious, and would have been apparent to the landlord’s representative from a cursory view of the legislation. Although the representative was not a lawyer, she was experienced in representing the landlord, and, as evidenced by the transcript, was in no way prevented from pursuing the application for termination. The Tribunal made no decision as to the termination notice or application for termination, as the representative voluntarily proposed pursuing the remedy of specific performance, being one of the forms of relief sought in the landlord’s original application. There was no common mistake, and even if the landlord was unaware, the tenant was not aware of the mistake and no conduct of the tenant would entitle the landlord to avoid the settlement on that basis ([69]-[70]).
(ii) To the extent that the Tribunal formed a view of the applicability of Pt 6A, the Appeal Panel found that this could not be considered as amounting to prejudgment. It is highly likely that the Tribunal would have recognised its error had reg 41A been drawn to its attention. As the Tribunal made no ruling on that issue, bias arising from prejudgment was not a reason for setting aside the consent orders ([70]).
(iii) Section 59 operates to grant additional powers to the Tribunal in connection with the resolution of disputes for which it has jurisdiction. The landlord’s construction of s 59 inappropriately seeks to confine the powers of the Tribunal. First, it inappropriately imports the term “consent order” into s 59. Second, the landlord conflates the manner in which s 59 is to operate; the Tribunal’s discretion to decide what orders should be made is to be exercised in the context of the agreement between the parties. Third, these submissions ignore the fact that the expression “consent”, is separately used in the NCAT legislation, an indicator that consent can be given other than in the form required by s 59(1)(a) of the NCAT Act: see e.g. cl 9(1)(a) Civil and Administrative Tribunal Regulation 2013 (NSW). Fourth, this proposition seeks to reduce an oral hearing to a signed written agreement, inconsistent with the conducting of an oral hearing and with s 38(4) of the NCAT Act ([86], [98]-[100], [102]-[104]).
(iv) The NCAT Act requires the “just, quick and cheap resolution of the real issues” with as little formality as possible. Neither it, nor the regulations nor the RT Act, suggest that matters about which there is agreement cannot be dealt with at a hearing in the absence of a written agreement signed by the parties, or that any consent must be in writing. Such a construction would be anathema in the context of an oral hearing. Section 59 must be interpreted in a way that seeks to give effect to the guiding principle of the NCAT Act ([92], [94]).
(v) Section 59 contemplates an agreement has already been reached between the parties outside the hearing process, evidenced by its requirement that “the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal”. Such an agreement may arise between the parties alone, or, for example, through a resolution process under s 37 of the NCAT Act. A signed written agreement is nothing more than a means to record the terms of the agreement and the parties’ consent; it is not a precondition or procedure to be followed in order to enliven the power of the Tribunal to make orders to which the parties provide consent at a hearing. Although the heading to the section (“Powers when proceedings settled”) may indicate a limitation to the circumstances in which the power can be exercised, a heading is not relevant when constructing a provision; without the heading, there is no basis to conclude s 59 operates in the context of an oral hearing ([105]-[107], [110]-[112]).
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| Consumer and Commercial Division - Strata
Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
In sum: The Appeal Panel dismissed the appeal of the Owners Corporation, which argued that the respondent lot owner was barred from commencing proceedings in April 2018 because he first became aware of loss of rent from water damage as early as 2013, and was thereby barred by a statutory limitation period.
Facts: The respondent (Mr Vickery) owned a top floor lot in a strata scheme managed by the appellant (the Owners Corporation), into which water repeatedly leaked from the roof between January 2013 and September 2018. This was a breach of the Owners Corporation’s statutory duty to maintain and keep in a state of good and serviceable repair the common property, under s 106(1) of the Strata Schemes Management Act 2015 (NSW) (SSMA). Section 106(5) allows a lot owner to recover damages for breach of this statutory duty, for any reasonably foreseeable loss. A two-year limitation period is imposed by s 106(6) ([8]-[10]).
In April 2018, around 18 months after the SSMA came into force, Mr Vickery brought an action for damages. The Owners Corporation admitted it had breached the statutory duty, and as a result of that breach Mr Vickery had lost $97,000 of rental income between November 2016, when the SSMA commenced, and November 2018 when the roof was repaired. The Owners Corporation claimed that its duty under s 106 was not a continuing obligation, breach of which occurred each and every day that the duty was not performed, nor giving rise to a separate cause of action under s 106(5) each day. The Owners Corporation further submitted that Mr Vickery became aware of the loss more than two years prior to the commencement of the proceedings, and so the application was barred by the operation of s 106(6) ([11]-[12]).
The Owners Corporation also claimed there was no power to order damages; however the Court of Appeal in Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 found that s 232 of the SSMA gives the Tribunal power to order an owners corporation to pay damages to a lot owner who suffers loss caused by a breach of the statutory duty ([5]-[6]).
At first instance the Tribunal found that the obligation under s 106 was a continuing obligation, breached each day the obligation is not performed and each breach giving rise to a separate cause of action, and that Mr Vickery was not barred from recovering compensation for losses sustained since the SSMA commenced in November 2016 ([14]-[15]).
Held (dismissing the appeal):
(i) In accordance with ordinary principles of statutory interpretation, s 106 should be read with its natural and ordinary meaning, taking into account the context and purpose of the legislation. Basten JA has said that s 106(1) creates a statutory duty, and s 106(5) creates a cause of action for damages resulting from contravention of s 106(1). The s 106(5) statutory right of recovery does not depend on common law principles, having been enacted in circumstances where there was held to be no relevant cause of action under the general law. As in the general law tort of negligence, a cause of action arises for the purposes of s 106, and time begins to run, when measurable damage is first suffered, even though further damage continues to accrue. Although the issues agreed by the parties for the appeal spoke of reasonably foreseeable “future loss”, this issue was not raised at first instance, and so could not be raised on appeal ([23], [31], [37]-[39]).
(ii) Because the statutory duty imposes a continuing obligation on the Owners Corporation, it was in breach of the statutory duty when the SSMA commenced. However, no cause of action existed or was available before that date; time cannot begin to run (or the cause of action cannot be complete) under s 106, until the cause of action exists or is available. For the purposes of the provision, Mr Vickery first became aware of the loss on the commencement of the SSMA, on which day the Owners Corporation was in breach of the statutory duty. A lot owner is not entitled by the SSMA to recover damages for loss incurred before the legislation came into effect ([47]-[48]).
(iii) It was unnecessary for the Appeal Panel to determine whether, because s 106(1) is a continuing statutory duty, a lot owner has a separate cause of action for damages on each day it is breached. The Panel nevertheless made non-binding observations: an interpretation that a lot owner may bring an action each and every day after first becoming aware of the loss for as long as the breach continues is inconsistent with the plain and ordinary meaning of s 106(6), which requires an owner to bring a claim within two years of first becoming aware of the loss. A lot owner is not entitled to bring proceedings for damages under s 106(5) on each day the statutory duty is breached and the owner incurs the loss ([49], [52], [63]).
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| Consumer and Commercial Division - Social Housing
S Westgarth, Deputy President; M Harrowell, Deputy President
In sum: The Appeal Panel allowed the appeal of the Aboriginal Housing Office against a decision of the Tribunal to refuse its application for compensation for damage to the property the respondent tenant inhabited. This was because the tenancy remained on foot and therefore the appellant had no cause of action upon which to base a claim for compensation. The Appeal Panel found that a cause of action arose upon the breach of the tenancy conditions, and the Tribunal has jurisdiction to grant compensation.
Facts: The appellant landlord sought compensation for damage to the property caused by the respondent tenant, in violation of the tenancy agreement and s 51(1)(d) of the Residential Tenancies Act 2010 (NSW) (RT Act). The Tribunal found that no cause of action existed as the tenancy remained on foot. The landlord appealed ([3]-[6]).
Held (allowing the appeal):
(i) The Tribunal misconstrued s 51(1)(d). The obligations set out in this section are continuing obligations applying during the currency of the tenancy. A cause of action arises when breach occurs. This has been explored in recent cases: Holmes North Community Housing v Schwaiger [2020] NSWCATAP 286; Aboriginal Housing Office v Dennis [2021] NSWCATAP 52 ([10], [13]).
(ii) The obligations set out in s 51(1), including at subs (d) for the tenant not to intentionally or negligently permit or cause any damage to the premises, are neither modified nor suspended by the obligations under s 51(2), which creates a positive obligation on the tenant to keep the premises in a reasonable state of cleanliness and notify the landlord of any damage as soon as practicable after becoming aware of it, nor s 51(3), which creates further obligations on the tenant upon giving vacant possession ([11]-[12]).
(iii) A breach under s 51(1) whilst the tenancy is on foot gives rise to a cause of action available to the landlord. It is well established under general law principles that if a party to an agreement suffers loss or damage due to another party’s breach of obligation, the affected party may sue for damages. The Tribunal has jurisdiction to make an order for compensation under s 187(1)(d) ([11]-[12]).
(iv) The Tribunal refused to make consent orders on the basis that the tenant may have been misled or confused into signing because of the landlord’s interpretation of the RT Act. As the landlord’s understanding was correct, the Tribunal’s decision to refuse was misplaced. The appeal was allowed ([14]-[16]).
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| Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; J Kearney, Senior Member
In sum: The Appeal Panel allowed the appeal of a landlord from an order of the Consumer and Commercial Division that the landlord pay the tenants a refund of excessive rent, due to a reduction or withdrawal by the landlord of certain services or facilities provided with the residential premises, in addition to compensation for damage to clothing.
Facts: The respondent tenants entered into a 12 month residential tenancy agreement with the appellant landlord, after the expiry of which they continued to reside at the premises on a periodic agreement. The tenants complained of water entry, mould and electricity supply. The body corporate accepted responsibility for the water entry; however professional mould cleaners were unable to gain entry to the property due to the tenants refusing access. The landlord agreed to replace the damaged carpet once the water leakage, for which the body corporate was responsible, was resolved ([5]-[9], [19]).
At the Tribunal, the tenants claimed $10,500 for loss of income, plus $400 in compensation for damaged goods and made a claim for rent reduction. The Tribunal awarded the tenants $4,840 as a refund of excessive rent and $400 for damage to personal property. The landlord appealed ([21]).
Held (allowing the appeal):
(i) The Tribunal did not apply its mind to whether the tenants were entitled to compensation, for example under s 52 of the Residential Tenancies Act 2010 (NSW) (RTA), rather than a refund of excessive rent.
(ii) Section 47(1) of the Residential Tenancies Act 1987 (NSW) was the predecessor provision to s 44 of the RTA. The scope of s 47(1) was confined by the phrase “goods, services or facilities provided” to physical and other facilities, goods or services, provided within, or as part of, the tenanted property, and only if the landlord reduced or withdrew those facilities did an obligation arise. The provision did not apply to the actions of people other than the landlord. Section 44(1)(b) should be read the same as its predecessor ([33]-[35]).
(iii) The tenants were responsible for part of the loss of amenity complained of because they declined to allow tradespeople to enter the premises to remove the mould. Although the Tribunal altered the weekly rent reduction from $100 to $80, there needed to be some reasons given for the Tribunal’s process and decision in reaching that amount ([36]-[38]).
(iv) The Tribunal appears to have found that the leaks existed from the commencement of the tenancy, meaning that those leaks and any mould then present would need to have been taken into account because s 44(1)(b) only applies to a “reduction or withdrawal” of services or facilities. Section 44 does not establish some standard of condition against which premises are to be judged ([42]).
(v) It is not clear whether the problem with the electrical circuit existed at the time the tenancy commenced or occurred subsequently. If the former, it is unlikely that s 44 would have applied, as nothing was “reduced” or “withdrawn”. If these issues existed from the commencement of the tenancy, the issue may be covered by s 52 (landlord’s general obligations regarding use and occupation) or s 63 (landlord’s general obligation to repair) or both. The issue of the mould may also be covered by these provisions. Although these sections are in different terms and may not be applicable, they should have been considered ([45]-[46]).
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| Consumer and Commercial Division - Motor Vehicles
S Westgarth, Deputy President; D Robertson, Senior Member
In sum: The Appeal Panel dismissed an appeal from a decision in the Consumer and Commercial Division relating to a dispute over the purposes of a quote for repair to a motor vehicle.
Facts: The appellant’s motor vehicle was physically damaged and would not start following a collision, and she sought assistance from the respondents in repairing the damage, the first respondent being a director of the second respondent. The respondent provided the appellant with a quote of $3,489, which was paid in full. After repairing the physical damage, the respondent referred the appellant to a Holden specialist, due to certain faults the respondents did not have capacity to resolve. The appellant sought a refund at the Tribunal, claiming the quote was for the damage to be fixed and the car to be made registration worthy. The respondents claimed that the quote was only for the physical damage and for the reason of the car not starting. At first instance, the Tribunal found in favour of the respondents. The appellant appealed ([1]-[10]).
Held (dismissing the appeal):
(i) An appeal is neither an opportunity to re-open a case, nor an opportunity to supplement the evidence to fill gaps in the evidence presented at the first instance hearing. Further evidence may be permissible on appeal, by leave of the Appeal Panel, in accordance with cl 12(1)(c) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), where there arises significant new evidence that was not reasonably available at the time of the original hearing. The new material put forward by the Appellant does not meet that requirement ([25]).
(ii) The appellant alleged apprehended bias at first instance, however the claim that the appellant was denied the opportunity to put her case forward was not substantiated by any further submissions that were not addressed in the first instance decision. The appellant’s criticism that the Tribunal asked her many questions, while posing few to the respondent, does not of itself display any bias ([26]).
(iii) In two respects the Appeal Panel considered that the Tribunal may have erred in its conclusions concerning the obligations of the second respondent: first, in respect of the replacement panels for the car not being a matching colour, the Panel considered that the Tribunal’s reasoning was flawed, it being a reasonable expectation that replacement panels would match the balance of the vehicle. Second, there was some dispute over whether, as the respondents claimed, the vehicle had a “Crash Mode”, meaning that the interior light stayed on following the crash, and resulted in flattening the battery. If there was a Crash Mode, the respondents failed to perform the work it contracted to undertake, and the appellant would be entitled to damages measured by the cost of having that work completed elsewhere. However, neither of these matters warrants the variation or setting aside of the Tribunal’s decision. The appeal was therefore dismissed ([32]-[35], [39]).
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| | | Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; G Curtin SC, Senior Member
Catchwords: COSTS – party/party – special circumstances warranting an award of costs established – misconceived appeal – non-compliance with obligation to comply with the Tribunal’s directions
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| Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member; A Boxall, Senior Member
Catchwords: APPEAL – adequacy of reasons – whether the Tribunal engaged with the cases of each party
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; A Boxall, Senior Member
Catchwords:BUILDING AND CONSTRUCTION – contract – identity of parties – terms of contract – damages – betterment – apportionment – contribution between builders for cost of unpaid variations
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| Consumer and Commercial Division - Motor Vehicles
Decision of: G Curtin SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: CONSUMER LAW – consumer guarantees – supply of goods and services – guarantee as to acceptable quality
APPEALS – procedure – further evidence on appeal – leave to appeal – cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) – significant new evidence – evidence that was not reasonably available at the time of the hearing
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| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; J Kearney, Senior Member
Catchwords: APPEAL – LAND LAW - Residential Tenancy -– termination of residential tenancy agreement by tenant – s107 - break lease fee
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| Consumer and Commercial Division - Tenancy
Decision of: A Bell SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: APPEALS – application for an extension of time in which to file notice of appeal
PROCEDURAL FAIRNESS — hearing rule —principles
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| Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: CONSUMER LAW – Consumer guarantees - Australian Consumer Law – scope of works: loss not established.
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| Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy President; J Kearney, Senior Member
Catchwords: COSTS – Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances
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| Consumer and Commercial Division - Commercial
Decision of: R C Titterton OAM, Senior Member; M Gracie, Senior Member
Catchwords: APPEALS – application for an extension of time to file a notice of appeal
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| Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D Robertson, Senior Member
Catchwords: COSTS – Special circumstances
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| Consumer and Commercial Division - Strata
Decision of: T Simon, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEAL – procedural fairness – application determined on a basis not raised with parties or sought or addressed by them
COSTS – principles as to when fixed sum costs order should be made – need for sufficient material
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| Administrative and Equal Opportunity Division
Decision of: S Higgins, Senior Member; R C Titterton OAM, Senior Member
Catchwords: APPEALS – application of appellant for an order that the respondent produce specified documents
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| Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Deputy President; J McAteer, Senior Member
Catchwords: LANDLORD AND TENANT – Residential Tenancies Agreement 2010 – termination under s 91(1)(a) – use of the premises for illegal purposes – operation of s 154D – mandatory termination unless undue hardship – application of s 154D(3)(b) – leave to appeal finding that no undue hardship – discretion to terminate – application of s 154E and consideration of other relevant factors in exercise of discretion
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| Consumer and Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President
Catchwords: RESIDENTIAL TENANCY- cause of action under s 51- whether a claim for compensation can be made before end of tenancy.
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| Consumer and Commercial Division - Consumer Claim
Decision of: The Hon F Marks, Principal Member; D Charles, Senior Member
Catchwords: APPEAL – appeal from dismissal of claim that contaminated diesel fuel dispensed from petrol station – held no direct evidence of cause of contaminated fuel in appellant’s vehicle – held insufficient circumstantial evidence to justify acceptance of claim – decision upheld – appeal dismissed
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| Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Deputy President; K Rosser, Principal Member
Catchwords: ORDERS – Consent order following settlement discussions facilitated by Tribunal – Misstatement of law by Tribunal during discussions to identify issues – liability of orders to be set aside by reason of misstatement – bases of challenge – prejudgment bias – denial of procedural fairness – challenge to underlying settlement agreement
PRACTICE AND PROCEDURE – Settlement of proceedings – making of consent orders at oral hearing – whether s 59 of the Civil and Administrative Tribunal Act 2013 requires consent given at an oral hearing to be in writing, signed by the parties.
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; Hennessy ADCJ, Deputy President; T Simon, Principal Member
Catchwords: STRATA TITLE – appeal from order of Tribunal awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation
STATUTORY INTERPRETATION – meaning of 2 year limitation period in s 106(5) of the Strata Schemes Management Act 2015
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| Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: LEASES AND TENANCIES – parties to the lease - default and termination – reduction and withdrawal of services – no error demonstrated
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| Consumer and Commercial Division - Tenancy
Decision of: A Bell SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: APPEAL – allegation of procedural fairness - non-compliance by appellant with directions to provide a typed copy of relevant parts of the sound recording of the hearing below including the oral reasons.
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Kearney, Senior Member
Catchwords: LEASES AND TENANCIES – excessive rent – reduction or withdrawal of goods, services or facilities – reduction or withdrawal must be by the landlord – covenant to provide the residential premises in a reasonable state of cleanliness and fit for habitation - covenant to provide and maintain the residential premises in a reasonable state of repair
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| Consumer and Commercial Division - Tenany
Decision of: R Hamilton, Senior Member; D Charles, Senior Member
Catchwords: APPEAL – residential tenancy – claim by tenant for compensation out of time – extension of time declined – claims by landlords on rental bond amount - no error of law – no substantial miscarriage of justice – leave to appeal refused
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; C Mulvey, Senior Member
Catchwords: LEASES AND TENANCIES – legislation protecting tenants – covid-19 pandemic provisions of the Residential Tenancies Act 2010 (NSW) – impacted tenant – whether household impacted by the COVID-19 pandemic – proof of reduction in household income by reason of pandemic
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| Consumer and Commercial Division - Commercial
Decision of: G Curtin SC, Senior Member; R C Titterton OAM, Senior Member
Catchwords: ENVIRONMENT AND PLANNING — fences and boundaries — dividing fence – no prior notice served pursuant to s 11 of the Dividing Fences Act – leave granted to subsequently serve notice – discretionary decision – no error demonstrated
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| Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member
Catchwords: GOVERNMENT INFORMATION – refusal by agency to deal with application – sec 60(1)(b) Government Information (Public Access) Act 2009 – same information previously requested and refused – Tribunal held no reasonable belief that a different decision would be made – no question of law on appeal – leave to appeal refused.
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| Consumer and Commercial Division - Social Housing
Decision of: T Simon, Principal Member; G Curtin SC, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — social housing — termination of social housing agreements – unlawful use of premises – nuisance – interference with peace, comfort or privacy of neighbours – non-appearance of tenant at hearing – case determined in the absence of the tenant - termination order made on basis of unlawful use of premises – no findings of fact of unlawful use made – set aside application dismissed – House v R errors made in both decisions – remittal of proceedings
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| Guardianship Division
Decision of: Boland AM ADCJ, Deputy President; M Schyvens, Deputy President; Dr M Spencer, General Member
Catchwords: APPEALS — from exercise of discretion — no error established — undertaking in context of guardianship proceedings
APPEALS — leave to appeal — principles governing
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; G Sarginson, Senior Member
Catchwords: APPEAL---Home Building---Procedural fairness--- Appeal on a question of law---Reasonable opportunity to be heard.
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; S Goodman SC, Senior Member
Catchwords: COSTS - costs of appeal and at first instance, special circumstances.
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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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