NCAT Appeal Panel Decisions Digest Issue 4 of 2024 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in April 2024:
Zahan and Jubly v Aly Pty Ltd [2024] NSWCATAP 55: An Appeal Panel allowed an appeal from a decision of NCAT which had dismissed a claim heard by NCAT twice before. Each time proceedings were initiated the names of the parties had changed. The Appeal Panel held that the Tribunal at first instance was wrong in referring to the principles of estoppel and res judicata as interchangeable and unavailable in these circumstances. Instead, the defence of res judicata should have been available as, despite the names of the parties changing, the parties in the final set of proceedings were privy in interest to the parties mentioned in prior proceedings.
Cornucopia (Young) Pty Ltd v Ward t/as Newcastle Model Autosports and Hobbies [2024] NSWCATAP 59: An Appeal Panel ordered an appellant pay the legal costs of the respondent where the appellant withdrew from its appeal four calendar days (two business days) before the appeal hearing. In making this costs decision, the Appeal Panel was not required to assess whether special circumstances were established under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), as the criteria in rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) had been satisfied. In finding for the respondent, the Appeal Panel considered the discretionary matters in Arambewela, ultimately distinguishing the present matter because that case had involved withdrawal at a relatively early stage in comparison to the two business days here.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. In what circumstances will failing to ensure a self-represented party is aware of relevant procedure, such as procedure relating to issuing a summons, result in a denial of procedural fairness?
Jeray v Blue Mountains City Council [2024] NSWCATAP 66 Administrative and Equal Opportunity Division S Montgomery, Senior Member; S Higgins, Senior Member
In sum: The extent to which NCAT must assist an unrepresented party will depend upon the nature of the case and the understanding of the party. Where a party is familiar with the tribunal process and has had several matters come before NCAT, it may not be necessary to spell out practice and procedure in the same manner as an unrepresented party attending NCAT for this first time. Additionally, there must be a “practical injustice” before relief will be granted for breach of procedural fairness.
Facts: The appellant (Mr Jeray) sought to appeal several procedural directions made by NCAT at first instance on the basis he was denied procedural fairness when those decisions were made. The procedural directions were interlocutory decisions as defined in s 4(1) of the NCAT Act, and Mr Jeray therefore required leave to appeal under s 80(2) of the NCAT Act. Mr Jeray claimed he had been denied procedural fairness on the basis he was not afforded sufficient assistance as an unrepresented applicant and was not given a reasonable opportunity to seek a summons prior to being required to submit evidence and written submissions. In addition, Mr Jeray claimed he was denied procedural fairness where he had requested an adjournment for the directions hearings, but directions were nonetheless made in his absence.
Held (refusing leave to appeal from the interlocutory decisions, dismissing the appeal): i) While affording procedural fairness can include a duty to assist self-represented parties in some circumstances (Lee v Cha [2008] NSWCA 13 at [49]), not every failure to ensure a self-represented litigant is aware of relevant procedure results in a denial of procedural fairness (at [14], [15]). The extent to which a court or tribunal must assist an unrepresented party is “factually idiosyncratic” and depends on the nature of the case and the party’s understanding of the case (Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [57]; citing Abram v Bank of New Zealand [1996] FCA 1650 ATPR 41-507, 42,347). The Appeal Panel found that Mr Jeray was familiar with NCAT practices and procedures, the respondent submitting Mr Jeray was a “serial litigant”. He had cited material from court websites in his application for an adjournment and could have considered the summons procedure available on the NCAT website. Even if Mr Jeray was not familiar with the procedure relating to summonses, he could have accessed the NCAT website like he had done previously or could have contacted the NCAT Registry for assistance (at [14]-[17]).
(ii) There must also be a “practical injustice” before relief will be granted on the basis of a breach of procedural fairness. If a denial of procedural fairness would not have impacted the outcome of the case, relief will not be granted (Flightdeck Geelong Pty Ltd v All Options Pty Ltd citing King v Delta Metallics Pty Ltd [2013] FCAFC 93 at [59]). In this case, the Information Commissioner cannot be compelled to give evidence, so a failure to inform a party of a procedure which is not available to them is not sufficient to establish a denial of procedural fairness (at [18]-[19]). Further, Mr Jeray’s submission here regarding a breach of procedural fairness was ‘so weak’ so as not to be sufficient to grant leave to appeal from any of the procedural directions (at [12]). There exists no practical injustice. | 2. Does the res judicata defence apply in circumstances where the party names have changed across multiple proceedings?
Zahan and Jubly v Aly Pty Ltd [2024] NSWCATAP 55 Consumer and Commercial Division S Thode, Principal Member; D Fairlie, Senior Member
In sum: Whilst the defence of res judicata will prevent a party from challenging a decision where the parties and relief sought are mirrored across multiple proceedings, an important qualification to this principle is that the common law recognises that a party to previous proceedings includes a person or entity who was a privy of that party.
Facts: The applicant (the respondent on appeal) brought a claim in NCAT for payment of electrical works carried out at the appellants’ premises. This was the third set of proceedings initiated in relation to the same claim. The first claim was dismissed as the respondent failed to appear at a conciliation hearing fixed for that day, despite being the applicant. On the same day, the respondent made a fresh application in his own name again seeking a money order. NCAT at first instance informed both parties that because the contract was unsigned and the value of the electrical works exceeded $20,000, sections 7, 7AAA and 10 of the Home Building Act 1989 (NSW) prevented the respondent from bringing any contractual claim, the respondent instead being limited to a quantum meruit claim. NCAT ultimately dismissed the claim, and the respondent commenced a third application the following day.
In relation to this third set of proceedings, there was some conjecture as to what the correct names of the parties were, as the respondent sought to join the appellant’s wife as party and substituted his own name for his company’s name. The Member in the reasons for decision noted that these were not new causes of action, but because of the change in parties, the defences of estoppel and res judicata do not apply.
On appeal, the appellant alleged the name changes by the respondent were ‘cunning’ and therefore the proceedings should again be dismissed as an abuse of process and because the issue of res judicata does arise. A further issue which arose on appeal was whether the dismissal of the quantum meruit claim was a finding based on the substantive merits of the claim, or was a decision made on a procedural basis only. This distinction is significant given that the res judicata defence is only available where the preceding decision was a final decision.
Held (allowing the appeal; setting aside the orders made at first instance and in substitution, dismissing the proceedings): (i) The issue was determined on a substantive basis. There was a two-hour contested hearing which was limited to the contractual claim, followed by a further three-hour hearing relating to the quantum meruit claim which the Member referred to as a “final hearing”. If it was the Member’s intention to dismiss the quantum meruit claim on a procedural basis only, the Member would have been obliged to inform the parties she would not be making a finding on that claim, and the parties would presumably then have had an opportunity to adduce further evidence and make further submissions (at [43]).
(ii) Res judicata and estoppel are distinct principles. The Member at first instance appears to have treated the principles as interchangeable, but estoppel was not at issue in the prior proceedings. Estoppel prevents a party from challenging a finding of fact which was determined in prior proceedings, whereas a res judicata defence arises where the Tribunal has delivered a final judgment (at [44]-[45]).
(iii) A res judicata defence will not usually arise in circumstances where the parties in multiple proceedings are not the same. However, there is an important qualification to this principle. The common law recognises that a party to previous proceedings includes those persons or entities who are a privy to that party in that they hold a relevant legal or beneficial interest in the prior proceedings (Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 at 909-910, see, Lo Kai Shui v HSBC International Trustee Ltd [2021] HKCU 2551; [2021] HKCFI 1539) (at [47], [50]). The respondent is the sole shareholder and director of the company and the only person to have been involved in the preparation for and conduct of all proceedings. The respondent shares the same interest in the proceedings, in his personal capacity and in the name of his business. In this sense, the company is the privy of the respondent personally, and the substitution of the names does not displace the res judicata defence. In the same vein, the addition of the wife’s name to the appellant does not displace the res judicata defence as she is a privy of her husband (at [53]-[58]).
| 3. What principles are relevant to NCAT’s exercise of discretion in awarding costs where one party has withdrawn from proceedings?
Cornucopia (Young) Pty Ltd v Ward t/as Newcastle Model Autosports and Hobbies [2024] NSWCATAP 59 Consumer and Commercial Division - Commercial G Sarginson, Senior Member
In sum: In circumstances where ss 60(1) and (2) of the NCAT Act apply in that ‘special circumstances’ are essential for an award of costs, withdrawal of proceedings may or may not be sufficient to establish special circumstances and give rise to an award of costs. However, an exception to ss 60(1) and (2) arises where rr 38 and 38A of the NCAT Rules apply. Where the amount in dispute in the initial proceedings exceeds $30,000 and secondly, the amount in dispute on appeal alone similarly exceeds $30,000, under rr 38 and 38A, NCAT may award costs even where special circumstances do not exist. Where rr 38 and 38A apply, discretionary matters for consideration include whether submissions have been filed and in what proximity to a hearing date withdrawal of proceedings occurs.
Facts: The appellant (lessor) commenced proceedings against the respondents (Mr and Mrs Ward, the lessees) seeking damages in respect of rent, outgoing arrears, interest, expenses and legal costs. At first instance, NCAT found in favour of the appellant ordering that the respondents pay damages. The appellant sought to appeal this decision on the basis that NCAT failed to afford it procedural fairness by rejecting evidence in relation to the rent arrears and substituting its own findings, and sought damages which exceeded $30,000. The appellant sought damages in the amount originally claimed at first instance and also for the costs of the appeal. However, the appellant did not file any documents or submissions pursuant to the procedural directions made by the Appeal Panel, and it was only upon Registry contacting it regarding the respondent’s request to appear via audio-visual link, that it proceeded to withdraw its appeal. This withdrawal came some four calendar days (two business days) before the appeal hearing. The respondents sought an order that the appellant pay their legal costs, either under general costs principles or on the basis there existed ‘special circumstances’ under s 60(2) of the NCAT Act.
Held (ordering that the appellant pay the respondents’ legal costs of the appeal proceedings): (i) While under s 60(1) of the NCAT Act parties are to bear their own costs unless the special circumstances arising under s 60(2) are established, an exception to ss 60(1) and (2) is contained in rr 38 and 38A of the NCAT Rules. Under these rules, where firstly, the amount in dispute in the initial proceedings exceeds $30,000 and secondly, the amount in dispute on appeal alone similarly exceeds $30,000, NCAT may award costs even in the absence of special circumstances (Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 (No 4) [2023] NSWCATAP 338 at [10]-[18]) (at [40]). The Appeal Panel was satisfied that the amount in the proceedings at first instance and on appeal both exceeded $30,000 and therefore the Appeal Panel was not required to assess whether special circumstances had been established (at [37]-[42]).
(ii) Discretion in costs decisions needs to be exercised “in a judicial (rather than capricious) manner”. However, where tribunal proceedings have been withdrawn, there is no judicial decision made on the merits to form the basis for a costs decision (at [48]). In addition, the NCAT Rules do not contain provisions similar to rr 42.19 and 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) which dictate that in circumstances where a plaintiff discontinues court proceedings, the plaintiff will be required to pay the costs of the defendants, and in circumstances where the court makes an order for the dismissal of proceedings, the plaintiff must pay the defendant’s costs, unless otherwise ordered by the court (at [52]-[56]). Despite the existence of equivalent provisions, in Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14, the Appeal Panel stated at [19] that “in the ordinary course, absent some compelling reason, the discontinuing party should pay the costs of the discontinued proceedings” (at [58]).
(iii) Whilst relying on this principle, the Appeal Panel distinguished the facts in Arambewela from the present matter. In Arambewela, an Appeal Panel exercised its discretion not to award costs to the respondent where it found the appeal lacked utility as the respondent had not paid the appellant the judgment amount and the appellant had reasonably concluded there was no prospect of recovering this amount. Whilst the respondents here have not paid the appellant the judgment amount, this appeal was withdrawn at a later stage and only after the respondents contacted Registry requesting to appear via audio-visual link as compared to the appeal in Arambewela which was withdrawn at “a relatively early stage” and prior to the filing of submissions (Arambewela at [20]-[21]) (at [60], [76]). The Appeal Panel instead drew a parallel between the present matter and Riman v Smith [2023] NSWCATAP 205 where the Appeal Panel was satisfied the appellant should pay the respondent’s costs as the appellant did not comply with procedural directions to file and serve submissions, and only withdrew the appeal after being urged by the respondent’s solicitor to do so. | | | Inventbuild Pty Ltd v Tulemis [2024] NSWCATAP 49 Consumer and Commercial Division - Home Building Decision of: K Ransome, Principal Member; G Burton SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – leave to appeal refused APPEALS — Procedural fairness — Whether there is any evidence of a denial of procedural fairness in the making of a consent order | | Weiss v Agus [2024] NSWCATAP 51 Consumer and Commercial Division - Commercial Decision of: K Ransome, Principal Member; G Sarginson, Senior Member Catchwords: LEASES AND TENANCIES---Retail lease---Rent and outgoing arrears--- Rent relief in accordance with the National Cabinet Mandatory Code of Conduct — SME Commercial Leasing Principles during COVID-19---Applicable principles
| Casey v Renfay Projects Pty Ltd; Casey v The Owners – Strata Plan No 586 (No. 2) [2024] NSWCATAP 52 Consumer and Commercial Division - Home Building Decision of: D Charles, Senior Member; D Fairlie, Senior Member Catchwords: COSTS – no real and genuine element of compromise in a Calderbank letter sent prior to the appeal hearing – indemnity costs refused – exercise of discretion under r 38A where one party largely successful in the appeals – no disentitling conduct or other factors to warrant a departure from the principle that costs follow the event.
| FCZ v Illawarra Shoalhaven Local Health District (No 2) [2024] NSWCATAP 53 Administrative and Equal Opportunity Division Decision of: I Coleman, SC ADCJ Principal Member; C Mulvey, Senior Member Catchwords: COSTS –- s 60 Civil and Administrative Tribunal Act 2013 – proceedings not out of the ordinary - proceedings not untenable, frivolous or vexatious – no award of costs.
| | | | | My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 Consumer and Commercial Division - Motor Vehicle Decision of: K Rosser, Principal Member; RC Titterton OAM, Senior Member Catchwords: APPEALS – Compensation claim – question of law – Tribunal ordering a refund of the purchase price rather than compensation for the reasonable cost of repairs as sought | Cornucopia (Young) Pty Ltd v Ward t/as Newcastle Model Autosports and Hobbies [2024] NSWCATAP 59 Consumer and Commercial Division - Commercial Decision of: G Sarginson, Senior Member Catchwords: COSTS — proceedings to which rr 38 and 38A of the Civil and Administrative Tribunal Act 2013 apply — retail lease appeal — withdrawal of proceedings in close proximity to hearing date — self-represented respondents who obtained legal advice — whether lump sum costs order should be made
| Habchi v Heys [2024] NSWCATAP 60 Consumer and Commercial Division - Residential Tenancy Decision of: R Seiden SC, Principal Member; Dr R Dubler SC, Senior Member Catchwords: RESIDENTIAL TENANCY — whether the Tribunal erred in awarding refund of excessive rent paid under the Residential Tenancies Act 2010 (NSW) — no question of law raised — leave to appeal refused | The Owners – Strata Plan No 38308 v Gelder [2024] NSWCATAP 61 Consumer and Commercial Division - Strata Scheme Decision of: R Seiden SC, Principal Member; Dr R Dubler SC, Senior Member Catchwords: COSTS — appeals — whether the Tribunal erred in not finding special circumstances and ordering costs after the Respondent, in substance, consented to the relief sought by the Appellant, the Applicant below — failure to consent to the Appellant’s proceedings earlier was not unreasonable — the Tribunal did not err in not finding special circumstances and not awarding costs in favour of the Appellant — whether the order of the Tribunal directing the Appellant to exempt the Respondent from any costs imposition relating to the Tribunal’s proceedings was within power and the jurisdiction of the Tribunal to make | Arnold v Crawford [2024] NSWCATAP 62 Consumer and Commercial Division - Commercial Decision of: S Thode, Principal Member; R Seiden SC, Principal Member Catchwords: APPEALS — Dividing fences — Extension of time – Appeal by leave under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) — Breach of procedural fairness — Whether there is significant new evidence for the purposes of clause 12, Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) | Marks trading as Ministry of Design v Emdek Pty Ltd trading as Safety Glasses Online [2024] NSWCATAP 63 Consumer and Commercial Division - General Decision of: R Seiden SC, Principal Member; Dr R Dubler SC, Senior Member Catchwords: CONSUMER CLAIMS — breach of procedural fairness — whether on a re-hearing the finding that the Respondent received no benefit from the consumer contract following lawful termination should be disturbed — on a re-hearing Appeal Panel is satisfied that the original orders should stand | Kordas v Ahmed [2024] NSWCATAP 64 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; J McAteer, Senior Member Catchwords: LEASES AND TENANCIES-residential tenancy-tenant’s claim that rent increase was excessive-written rent increase notice required to be given pursuant to s 41 (1) of the Residential Tenancies Act 2010 (NSW) (RTA) -tenant acknowledged receipt of notice within the 60 day time period requirement-validity of written notice when given by email where no email address specified as required by s 223 of the RTA-Tribunal found invalid-Tribunal did not consider significance of tenant’s acknowledgement of receipt-error of law. | Hunt v The Owners - Strata Plan No 1158/84199 [2024] NSWCATAP 65 Consumer and Commercial Division - Strata Scheme Decision of: M Harrowell, Deputy President; A Boxall, Senior Member Catchwords: LAND LAW – Strata Schemes Management Act 2015 – By-law regulating installation of air conditioning and permitting strata committee to approve – whether by-law protecting amenity of other lot owners is harsh oppressive or unconscionable ADMINISTRATIVE LAW – construction of by-law – principles applicable – circumstance in which extrinsic material may be relied on to determine meaning | Jeray v Blue Mountains City Council [2024] NSWCATAP 66 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: CIVIL PROCEDURE — leave sought to appeal from interlocutory decisions — procedural fairness — scope of duty of Tribunal to assist self-represented party | | | 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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