| | | | | NCAT Appeal Panel Decisions Digest Issue 5 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 May 2021: - Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 - In which the Appeal Panel dismissed an appeal by the tenant from a decision in the Consumer and Commercial Division on the basis that they failed to comply with the orders and directions of the Tribunal so as to not provide critical material required by the Tribunal to decide the case.
- Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 - In which the Appeal Panel dismissed the appeal of the appellant against the orders of the Administrative and Equal Opportunity Division of the Tribunal because the appeal was moot. The appellant had already complied with the directions of the Tribunal which it sought to appeal from, and the appeal could not be allowed in order to settle a question of law of general importance as the Tribunal’s decision was not plainly wrong and the decision could not be disposed of quickly.
- The Owners – Strata Plan 4159 v Wolff [2021] NSWCATAP 135 - In which the Appeal Panel found that the fact that a General Member of the Tribunal had acted as an expert witness in proceedings before the Consumer and Commercial Division, and was the domestic partner of one of the parties, did not give rise to apprehended bias necessitating a transfer of proceedings to the District Court.
- Burrows v Aboriginal Housing Office [2021] NSWCATAP 124 - In which the Appeal Panel dismissed the appeal of a tenant who appealed against the decision of the Consumer and Commercial Division. The Appeal Panel upheld the Tribunal’s finding that the respondent landlord did not fail to take all reasonable steps to prevent the appellant’s neighbours, who were also tenants of the respondent, from interfering with the appellant’s reasonable peace, comfort or privacy in using the premises, because the appellant had asked the respondent not to take action against the neighbours, and had made complaints for another purpose, namely securing new premises.
- ZSJ v ZSK [2021] NSWCATAP 144 - In which the Appeal Panel allowed an appeal and ordered an appeal by way of new hearing despite there being no error of law in the decision of the Guardianship Division being appealed, because the circumstances of the parties had changed.
- Wallbank v Angelos [2021] NSWCATAP 128 - In which the Appeal Panel allowed an appeal from the decision of the Consumer and Commercial Division which found that an oral agreement to alter the rent payable by the appellant tenant to the respondent landlord was not a rent reduction, and the balance was not waived. There was sufficient evidence before the Tribunal that demonstrated that the original written rental agreement between the parties was varied in a way which waived $235 of the $635 agreed upon.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; J Currie, Senior Member
In sum: The Appeal Panel dismissed an appeal by the tenant from a decision in the Consumer and Commercial Division on the basis that they failed to comply with the orders and directions of the Tribunal so as to not provide critical material required by the Tribunal to decide the case.
Facts: The parties entered into a residential tenancy lease, from which various disputes arose. Consequently, multiple proceedings were lodged at the Tribunal. The Tribunal ordered the appellant to pay the respondent for various expenses including rent arrears and cleaning, and in separate proceedings the respondent was ordered to pay the appellant a refund for electricity charges. The appellant appealed on the basis that the Tribunal erred in assessing both the amount of costs to be awarded to and against her. The appellant failed to comply with an order by the Appeal Panel to supply a copy of the sound recording or transcript of the hearing at first instance ([1], [8], [11], [15]-[16], [20]).
Held (dismissing the appeal):
(i) The onus falls on the appellant, who brought the appeal, to supply the Appeal Panel with the material which is critical to decide the appeal in her favour, being in this case the sound recording or transcript of the proceedings below. Compliance with directions and orders of the Tribunal is mandatory, not optional: s 36(3), NCAT Act ([22], [24]).
(ii) There was no excuse for not supplying the sound recording as any fee for obtaining a copy can be waived in cases of hardship ([26]).
(iii) Aside from the fact that the Appeal Panel acknowledged and understood that the appellant was neither legally represented nor legally trained, a lack of representation will not usually justify applying to self-represented litigants a lower standard of compliance with rules or orders of the Court ([39]).
(iv) The Court of Appeal has previously noted that compliance should not be disregarded, or mocked, by treating an opponent’s obligation to comply with the Court’s directions as less than important, or as superfluous ([39]).
(v) In this case, most critically, the material needed to decide the appeal included the sound recording or a transcript of the hearing before the Tribunal including the Tribunal’s reasons. Without it, the appeal must inevitably fail ([25]-[26]).
(vi) Whilst the Appeal Panel in this case reviewed the voluminous material before it (lodged by the appellant) to see whether the Tribunal below erred in making its orders, they were not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed an arguable point. Neither did they find it necessary to attempt to recite, refine or paraphrase the appellant’s submissions ([29], [32]-[33], [35]).
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| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; A Britton, Principal Member
In sum: The Appeal Panel dismissed the appeal of the appellant against the orders of the Administrative and Equal Opportunity Division of the Tribunal because the appeal was moot. The appellant had already complied with the directions of the Tribunal which it sought to appeal from, and the appeal could not be allowed in order to settle a question of law of general importance as the Tribunal’s decision was not plainly wrong and the decision could not be disposed of quickly.
Facts: While defending criminal charges, the respondent applied to the appellant (the Secretary) for personal information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Secretary refused to deal with the application because the respondent was a “party to current proceedings before a court, and able to apply to that court for information”, pursuant to s 60(1)(e) of the GIPA Act. The respondent brought proceedings at the Tribunal, and the Tribunal ordered the Secretary to deal with the application; the Secretary complied, providing access to some documents, refusing access to others, and deciding that it did not hold some documents. The Secretary appealed the Tribunal’s decision on the same day that it complied with the directions ([2]-[4]).
Held (dismissing the appeal):
(i) The appeal is moot, the respondent no longer being a party to current legal proceedings where he is able to apply for the information, and the Secretary having already complied with the Tribunal’s orders. The Tribunal’s guiding principle under s 36 applies to issues of practice and procedure, not substantive issues before the Tribunal; therefore the Tribunal is guided by the same principles as a court when dealing with a moot appeal ([7]-[9]).
(ii) Although appeals on legal questions that have no practical consequences for the parties should not generally be entertained, there exist circumstances where it may be appropriate to exercise discretion to hear a moot appeal. This includes: where there is a live issue as to costs (although courts are often reluctant to determine such appeals); where there is a question of whether a first instance costs order was correctly made; where a “practical point” might be served because the decision is likely to affect other cases; or where there is a significant issue in the case as to the proper construction of legislation ([12], [17]-[20], [26]).
(iii) However, the object of the judicial process is the final determination of the rights of the parties to an action; the court does not have advisory jurisdiction, and it is only in rare circumstances, if ever, that a court would be justified in reaching a decision on a legal question that had no practical consequences for either party ([10]-[11], [15]).
(iv) The Secretary’s submission that the appeal should be determined because it raised a question of general importance to all public sector agencies, the Tribunal not having previously considered the meaning of s 60(1)(e) of the GIPA Act, was rejected. This was not a case where the Tribunal’s decision was plainly wrong and could be disposed of quickly. Further, no other proceedings were on foot where questions of law identified by the Secretary would be pivotal. Consequently, the appeal was dismissed ([30]-[32]).
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| Consumer and Commercial Division - Strata M Harrowell, Deputy President; A Bell SC, Senior Member
In sum: The Appeal Panel found that the fact that a General Member of the Tribunal had acted as an expert witness in proceedings before the Consumer and Commercial Division, and was the domestic partner of one of the parties, did not give rise to apprehended bias necessitating a transfer of proceedings to the District Court.
Facts: The respondent (Ms Wolff) is a lot owner in a strata scheme managed by the applicant (the Owners Corporation), and is seeking orders for the carrying out of works by the Owners Corporation to the common property. Ms Wolff’s domestic partner (Mr Topolinsky), a structural engineer, provided an expert opinion for the purposes of those proceedings. Mr Topolinksy is also a General Member of the Tribunal. As such, the Owners Corporation made an application for the proceedings to be transferred to the District Court, on the basis of apprehended bias. This interlocutory application was dismissed by the Tribunal, and the Owners Corporation appealed ([2]-[5]).
Held (granting leave to appeal and dismissing the appeal):
(i) Leave to appeal was granted due to the fact that the appeal raised a question of general importance not previously examined by the Appeal Panel, namely, whether the association of a witness with the Tribunal, specifically Mr Topolinsky’s position as a General Member, requires the Tribunal to make an order transferring the proceedings to a court due to a reasonable apprehension of bias ([28]-[29]).
(ii) The relevant test for apprehended bias is whether a fair-minded objective lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the relevant question. This requires the identification of what it is said might lead the decision-maker to decide a case other than on its legal or factual merits, and an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits ([33]-[34]).
(iii) In considering the Owners Corporation’s submission that the Tribunal took too narrow approach in assessing whether there was a reasonable apprehension of bias arising from the facts by focusing on whether there was potential for prejudgment, it is important to consider the reasons as a whole, and not scrutinise them with a fine-tooth comb attuned to identifying error. The concept of prejudgment is relevant in assessing bias arising from association. The reasons as a whole show that the Tribunal considered all factual matters, and though it used the phrase “open to persuasion”, this was not limited to the issue of prejudgment, but rather is an explanation of how the Tribunal analysed the mind of the fair-minded lay observer in deciding that no reasonable apprehension of bias arose in the present matter ([59]-[61], [63]).
(iv) The whole context of the decision must be considered. It is notable that the application was not specific to a Tribunal Member, but rather suggested that no Member of the Tribunal could hear the application due to the reasonable possibility of apprehended bias. There was no evidence to suggest that Mr Topolinsky had an association with all of the approximately 120 Members of the Consumer and Commercial Division, let alone the over 275 Tribunal Members. A properly informed, fair-minded lay observer would accept that: many Members had no dealings or association whatsoever with Mr Topolinsky; and there was no hierarchical issue of a Member who was subservient to Mr Topolinsky deciding the case ([40], [64], [66]).
(v) Even if it were accepted that there existed Members with whom Mr Topolinsky has an association which might give rise to a reasonable apprehension of bias, this possibility, when considered in the context of the membership of the Tribunal as a whole and the options for consulting the Tribunal for the purpose of hearing the proceedings, is not a factor on its own which would have any significant weight, let alone be a matter which should be given heavy weight so as to justify the making of an order transferring the proceedings to a court. The Tribunal is the proper forum, and as the proceedings have been commenced there is no reason why the proceedings should be transferred to a court ([75]-[76]).
(vi) The Tribunal is unique from courts in respect of practice and procedure, representation and costs, and has special skills and unique order-making powers. It would be a curious result if parties who call Members as witnesses were deprived from bringing proceedings in the Tribunal merely because the witness was also a Member of the Tribunal ([78]).
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| Consumer and Commercial Division - Social Housing
G Curtin SC, Senior Member; J Currie, Senior Member
In sum: The Appeal Panel dismissed the appeal of a tenant who appealed against the decision of the Consumer and Commercial Division. The Appeal Panel upheld the Tribunal’s finding that the respondent landlord did not fail to take all reasonable steps to prevent the appellant’s neighbours, who were also tenants of the respondent, from interfering with the appellant’s reasonable peace, comfort or privacy in using the premises, because the appellant had asked the respondent not to take action against the neighbours, and had made complaints for another purpose, namely securing new premises.
Facts: The appellant was a tenant of the respondent, and received verbal abuse and death threats from neighbours, who were also tenants of the respondent. There was no doubt that the neighbours interfered with the reasonable peace, comfort or privacy of the appellant in using the premises rented from the respondent; the issue was whether the respondent had fulfilled its obligation under s 50(3) of the Residential Tenancies Act 2010 (NSW) (RT Act) to take all reasonable steps to prevent such interference. In May 2018 the appellant began to regularly file reports on the abuse, and in June 2018 the appellant applied for transfer to new premises, and eventually gained priority status for her application. The respondent interviewed one of the neighbours and issued a “first strike notice” ([3]-[6]).
Held (dismissing the appeal):
(i) As noted by the Tribunal, nowhere in the appellant’s statutory declaration or attached emails was there any evidence of a request by the appellant for the respondent to take action against the neighbours. It appeared that the primary, if not exclusive, purpose of the emails was to support the appellant’s application to be transferred to new housing. Procedural fairness required the respondent to provide the neighbours with sufficient particulars as to what was alleged, which would likely have identified the appellant. The evidence suggests that the appellant requested that the respondent not take action until January 2020, when another neighbour made complaints about the neighbours ([20]-[23], [26], [30]).
(ii) In deciding that the respondent did take reasonable steps, the Tribunal appropriately limited its reliance on the appearances of witnesses, and considered a range of matters which bore upon that finding, including relatively contemporaneous documents, objectively established facts and the apparent logic of events ([37], [39]-[40]).
(iii) Because the central finding of the Tribunal was partly demeanour-based, the appellant bore the onus of proving that the Tribunal failed to use, or had palpably misused, its advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. The appellant failed to do so ([41]-[43]).
(iv) The appellant’s application for a rent reduction pursuant to s 44(1)(b) of the RT Act failed, as the section only applies to the reduction or withdrawal of goods, services or facilities by the landlord, and does not extend to the actions of third parties, i.e. the neighbours ([44]-[45]).
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| Guardianship Division
A Britton, Principal Member; R Booby, Senior Member; M Bolt, General Member
In sum: The Appeal Panel allowed an appeal and ordered an appeal by way of new hearing despite there being no error of law in the decision of the Guardianship Division being appealed, because the circumstances of the parties had changed.
Facts: The appellant is the daughter of the respondent (the Subject Person) and acts as his guardian pursuant to a 2018 order by the Guardianship Division of the Tribunal, which was renewed in 2019 for three years. The appellant and the aged care facility (the Facility) in which the Subject Person resided had a long-running dispute regarding the Subject Person’s care, including the appellant’s refusal to consent to medication and medical treatment for the Subject Person’s alleged aggressive behaviour, other than medical cannabis. Upon application by the Facility, the Tribunal varied the 2019 order, and made an order removing the appellant as guardian to the Subject Person, and appointing the Public Guardian. The appellant appealed from the Tribunal’s decision that she was not “able” to exercise the functions conferred by the guardianship order, pursuant to s 17(1)(c) of the Guardianship Act 1987 (NSW), due to her reluctance to follow medical advice in a situation where both her father and others were put at risk ([1]-[3], [19]).
Held (ordering an appeal by way of new hearing and refusing the costs application):
(i) There was no error of law on the part of the Tribunal, which provided cogent and persuasive reasons, and the appellant’s grounds of appeal were a thinly-veiled attempt to relitigate issues fought and lost in the proceedings. However, exercise of the discretionary power under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to deal with an appeal by way of a new hearing, and take into account fresh evidence, is not pre-conditioned on establishing a question of law. Nevertheless, there must be some compelling reason to warrant the exercise of that discretion ([24]-[27], [29]).
(ii) The appellant is entitled under ss 25(2) and 25B of the Guardianship Act to seek review by the Tribunal of the decision to appoint the Public Guardian should this appeal be dismissed. Considering the material changes to the Subject Person’s circumstances since the 2020 orders, including residence in a new aged care facility and an apparent end to the challenging behaviour following treatment with medical cannabis, it is appropriate, with regard to NCAT’s guiding principle and the Tribunal’s obligations under s 4(a) of the Guardianship Act and cl 5(1) to Sch 6 of the NCAT Act to give paramount consideration to the Subject Persons’ welfare and interests, to reconsider the 2020 orders without delay ([7], [30]-[31]).
(iii) The Tribunal was correct to find, in the 2020 decision, that the appellant lacked the requisite objectivity to give proper consideration to the medical opinions. However it is likely that this inability arose from the circumstances at the time (including the strained relationship with the CEO of the Facility, and the lack of first-hand knowledge due to pandemic-based limitations on visitation at the Facility), rather than an immutable aspect of her personality, as evidenced by the appellant’s behaviour since, in demonstrating her preparedness and ability to work with medical practitioners and give proper and genuine consideration to their opinions. The Appeal Panel noted that the Public Guardian’s representative’s testimony that she consulted regularly with the appellant and had no concerns with her ability to give proper consideration to medical advice. Further, the Subject Person’s cousin, who was an alternative guardian, supported the appellant’s reappointment, and there were no concerns raised by the new care facility or the hospital at which the Subject Person had temporarily resided ([37]-[42], [45]-[46]).
(iv) The Tribunal’s procedural flexibility in not being bound by the rules of evidence and being required to act with as little formality as possible does not give a party, including a self-represented party, licence to use proceedings to make scandalous allegations against an opponent. The CEO of the Facility’s submission that several of the appellant’s allegations made in the course of the appeal (prior to her acquisition of legal representation) can be fairly characterised as scandalous, and the CEO’s request for orders under s 64 of the NCAT Act prohibiting the disclosure and publication of the appellant’s affidavit and written submissions should be accepted. However there did not exist “special circumstances” for the purposes of a s 60 costs order, primarily due to the concession properly made by the appellant’s legal representative as to the scandalous nature of the appellant’s allegations, noting the appellant’s lack of knowledge and experience in the proper conduct of legal proceedings ([55]-[57]).
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| Consumer and Commercial Division - Tenancy
G Curtin, Senior Member; S Goodman SC, Senior Member
In sum: The Appeal Panel allowed an appeal from the decision of the Consumer and Commercial Division which found that an oral agreement to alter the rent payable by the appellant tenant to the respondent landlord was not a rent reduction, and the balance was not waived. There was sufficient evidence before the Tribunal that demonstrated that the original written rental agreement between the parties was varied in a way which waived $235 of the $635 agreed upon.
Facts: The appellants entered into a residential tenancy agreement with the respondent as landlord for $635 per week, with the term set between March and September 2020. In April 2020 the tenants and landlord had a conversation (the April Conversation), following which the tenants paid a weekly rent of $400 until the end of the tenancy. There was no written record of the conversation. The parties disputed whether the payment of the $235 had been waived or deferred, and the respondent applied to the Tribunal. The Tribunal found that it could not assume, or be sufficiently satisfied on the evidence, that the initial written agreement was varied in a way that waived the balance of $235 per week; the tenant appealed ([2]-[9], [11]).
Held (granting leave to appeal, allowing the appeal and remitting the matter for re-hearing):
(i) The Tribunal erroneously found that the tenants had argued that there was never any discussion of whether the $235 balance was to be waived or deferred, a finding which was directly contradicted by the sound recording. At the hearing, the tenants explicitly stated that the matter of waiver was discussed in the original April Conversation, and only stated that there was never discussion of the payment being deferred, not waived ([27]-[30]).
(ii) For these reasons, there is a possibility that the tenants suffered a substantial miscarriage of justice pursuant to cl 12 of Sch 4 to the NCAT Act, on the basis of: the absence before the Tribunal of a sufficiently clear and cogent account (or accounts) of the facts relevant to the determination of what was said in the April Conversation; and the Tribunal’s decision turning upon an erroneous finding as to what was not said during the April Conversation, which finding was contrary to the evidence, rather than what had been said ([17], [23]-[24]).
(iii) The appellants were deprived of a chance that was fairly open of achieving a better outcome, because decision of the Tribunal was (a) not fair and equitable and (b) was contrary to the evidence, pursuant to cl 12 of Sch 4. As such, the Appeal Panel exercised its discretion under s 80(2)(b) of the NCAT Act to grant leave to appeal and allowed the appeal ([20], [33]-[34]).
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| | | Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; G Walker, Senior Member
Catchwords: APPEAL – where party has appealed from interlocutory decisions of the Tribunal relating to non-disclosure, non-publication and exclusion of a party and their legal representative from confidential hearing – whether leave should be granted to appeal from interlocutory decisions
STATUTORY INTERPRETATION – meaning of s 49 and s 64 of the Civil and Administrative Tribunal Act 2013 and s 59 of the Administrative Decisions Review Act 1997.
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| Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Deputy President; A Bell SC, Senior Member
Catchwords: LANDLORD AND TENANT – Residential Tenancies Act, 2010 (NSW) – termination of residential tenancy agreement – claim for unpaid rent – claim by tenant that landlord failed or refused to negotiate rent reduction – no power of the Tribunal to make an order to reduce rent in respect of a residential tenancy agreement where a tenant is an impacted tenant by reason of the COVID-19 pandemic – date when residential tenancy agreement ends – requirement to give up possession – obligation on tenant to leave premises reasonably clean
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| Occupational Division
Decision of: Cowdroy AO QC ADCJ, Principal Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — improper conduct — disciplinary action — appellants failed to obtain insurance and made false or misleading applications — residential building work not carried out under a contract — appellants not fit and proper persons to hold an authority under the Act
APPEALS — whether finding that appellants not fit and proper persons to hold an authority under the Home Building Act 1989 (NSW) against weight of evidence — inferences from primary facts — inconsistency of findings — conclusion not supported by findings — whether finding of unacceptable risk of reoffending not justified by evidence — whether Tribunal had regard to irrelevant consideration in taking candour into account — whether Tribunal disregarded relevant consideration in concluding subjective state of mind and understanding of conduct not to the point — appeal dismissed
APPEALS — leave to appeal — principles governing
APPEALS — procedural fairness — failure to give reasons — adequacy of reasons
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member
Catchwords: COSTS – party/party – successful defence by way of equitable set-off which extinguished the respondent’s claim – costs should follow the event
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; S Goodman SC, Senior Member
Catchwords: BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - residential building work - statutory warranty - proceedings for breach – damages – claimed loss of rent cause by breach of statutory warranty – no evidence to support claim – claim dismissed – no error in Tribunal rejecting evidence not previously served – fresh evidence rejected on appeal as not established that evidence not reasonably available at the time of the Tribunal hearing
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; K Rosser, Principal Member
Catchwords: HOME BUILDING CONTRACT- whether contract to do residential building work, meaning of “procure”- claim for breach of warranties as successor in title - whether time for lodgment of application should be extended
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| Consumer and Commercial Division - Tenancy
Decision of: L Wilson, Senior Member; M Gracie, Senior Member
Catchwords: RESIDENTIAL TENANCY - tenant vacated property - breach of residential tenancy agreement - part of decision of the Tribunal based on acceptance of expert reports - methamphetamine testing - failure to establish qualifications and expertise - failure to explain testing methodology and results - unexplained discrepancies in expert reports - part of decision of Tribunal against the weight of the evidence - leave to appeal - appeal allowed in part
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| Consumer and Commercial Division - Motor Vehicles
Decision of: G Curtin SC, Senior Member; D Charles, Senior Member
Catchwords: APPEALS - right of appeal - scope of right – second appeal from the same orders made by the Tribunal as were the subject of the first appeal – only one appeal may be brought from the same orders
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| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; J McAteer, Senior Member
Catchwords: APPEAL – residential tenancy
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President
Catchwords: SUMMARY DISMISSAL OF APPEAL - whether appeal brought without authority
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| Consumer and Commercial Division - Tenancy
Decision of: Cowdroy AO QC ADCJ, Principal Member; G Curtin SC, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — quiet enjoyment — rent reductions — reduction of services and facilities
APPEALS — leave to appeal — whether decision was unfair and against weight of evidence — appeal from exercise of discretion — no error of law — no basis for asserting decision maker misunderstood evidence — leave to appeal refused
EVIDENCE — fresh evidence — what constitutes fresh evidence
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| Guardianship Division
Decision of: M D Schyvens, Deputy President; J S Currie, Senior Member (Legal); B McPhee, Senior Member (Professional)
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division – guardianship and financial management orders – asserted errors of law – failure to take into account mandatory consideration – suitability and availability of candidate for appointment as guardian and as private financial manager – no error of law established – appeal dismissed – leave to appeal – grounds for grant of leave not established – leave to appeal refused.
PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist unrepresented appellant in formulation of their case – grounds of appeal – grounds for leave to appeal.
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| Consumer and Commercial Division - Home Building
Decision of: G Blake AM SC, Senior Member; D Robertson, Senior Member
Catchwords: COSTS – No issue of principle
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Currie, Senior Member
Catchwords: LEASES AND TENANCIES - rent and outgoings – repairs – factual findings – no sound recording or transcript of hearing or oral reasons provided – inability to uphold the appeal in the absence of a sound recording or transcript of the oral evidence or oral reasons
ADMINISTRATIVE LAW - particular administrative bodies - NSW Civil and Administrative Tribunal – appeals – unrepresented litigants – level of assistance – balancing the competing considerations to be taken into account
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| Consumer and Commercial Division - Social Housing
Decision of: G Curtin SC, Senior Member; J Currie, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) - quiet enjoyment – landlord required to take all reasonable steps to ensure that the tenant’s neighbours who were also tenants of the landlord did not interfere with the tenant’s quiet enjoyment of the premises – finding of fact that reasonable steps taken – no error demonstrated
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| Consumer and Commercial Division - Motor Vehicles
Decision of: A D Suthers, Principal Member; G K Burton SC, Senior Member
Catchwords: APPEALS – procedural fairness – effect of r 13, Civil and Administrative Tribunal Rules 2014 – service of Notice of Hearing by Tribunal taken to be effective unless otherwise proven – obligation on party to comply with directions – discretion of Appeal Panel to allow appeal even if 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: LEASES and TENANCIES - Residential Tenancies Act - Law Reform (Law and Equity) Act- claim by tenant to an equitable interest in the property-whether the Tribunal should have determined if the tenant was entitled to remain in possession by reason of that interest notwithstanding the termination of the residential tenancy agreement.
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| Consumer and Commercial Division - Tenancy
Decision of: A Suthers, Principal Member; A Lo Surdo SC, Senior Member
Catchwords: LANDLORD AND TENANT – Residential Tenancies Act, 2010 (NSW) – application for termination of residential tenancy agreement – claim for unpaid rent – Tribunal not satisfied requisite notice given – application dismissed – extension of time to lodge Notice of Appeal refused
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; S Goodman, Senior Member
Catchwords: APPEALS – leave to appeal – substantial miscarriage of justice - absence of a sufficiently clear and cogent account of the facts relevant to the issue for determination – finding contrary to the evidence
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| Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; G Sarginson, Senior Member
Catchwords: APPEALS---Building and Construction---Residential building---Evidence---Expert evidence---Assessment of expert evidence---Whether evidence established breach of statutory warranty
APPEALS---Civil procedure---Re-opening of case---Applicable principles
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| Consumer and Commercial Division - Motor Vehicles
Decision of: K Ransome, Senior Member; S Goodman SC, Senior Member
Catchwords: APPEALS – leave to appeal - from finding of fact-on basis of no evidence or finding against the weight of evidence – failure to comply with direction to file and serve the record of the hearing appealed from
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| Consumer and Commercial Division - Home Building
Decision of: The Hon F Marks, Principal Member; D Robertson, Senior Member
Catchwords: APPEAL – building and construction – finding that appellant owners had failed to prove that the respondent builder failed to diligently proceed with the works – whether owners validly terminated the contract – whether contract repudiated by owners-held owners not entitled to recover damages for breach of contract-entitlement of builder to recover costs of additional works on basis of quantum meruit – appeal dismissed with costs.
CIVIL PROCEDURE – application to refer question of law to Supreme Court of NSW – application made on basis of factual assumption not established in the proceedings – application refused
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – contract – assignment – termination – rights accruing before termination date – accrued rights survive termination – onus of proof – appellant failed to discharge onus of proof that work requested or done after termination date
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior Member
Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – repairs – damage – sufficiency of evidence of damage - rent - excessive rent – reduction of services or facilities – discretion – reduction not warranting reduction of rent – no error in exercise of discretion
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| Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy President; A Bell SC, Senior Member
Catchwords: ADMINISTRATIVE LAW – Bias – apprehended bias – interest or association bias – Member of Tribunal providing lay and expert evidence in support of a claim brought by his domestic partner in proceedings in the Tribunal – application to transfer proceedings to a court pursuant to Sch 4 cl 6 of the Civil and Administrative Tribunal Act 2013 – appeal against refusal – whether all Members of the Tribunal affected by apprehended bias so as to necessitate the transfer of the proceedings to a court – challenge to exercise of discretion – principles applicable in claim for apprehended bias
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| Consumer and Commercial Division - Strata
Decision of: Cowdroy AO QC ADCJ, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEALS — from exercise of discretion — failure to exercise discretion — costs order — award of costs
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| Consumer and Commercial Division - Home Building
Decision of: Cowdroy AO QC ADCJ, Principal Member; L Wilson, Senior Member
Catchwords: APPEALS — leave to appeal — appeal from exercise of discretion — miscalculation of claim — no factual error — decision not unreasonable — leave to appeal refused
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — building dispute
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G K Burton SC, Senior Member
Catchwords: Home building - pre-contractual work - scope of contract compensation mechanism on termination for unforeseen conditions - whether residential building work
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; A Britton, Principal Member
Catchwords: APPEAL – moot appeal – where agency had complied with Tribunal’s orders, but sought to appeal – power of Appeal Panel to determine appeal – general rule - discretion to hear a moot appeal – factors to be taken into account
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| Guardianship Division
Decision of: The Hon F Marks, Principal Member; J Kearney, Senior Member; L Porter, General Member
Catchwords: APPEAL from dismissal of applications to review guardianship and financial management orders – held no demonstrated error in decisions – appeal dismissed
CIVIL PROCEDURE application by layperson who is also the secretary of an organisation designed to expose alleged abuse by government instrumentalities involved in providing guardianship and administration services to persons with appropriate disabilities and incapacities to represent parties – application refused
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| Consumer and Commercial Division - Strata
Decision of: A Suthers, Principal Member; J Kearney, Senior Member
Catchwords: PRACTICE AND PROCEDURE – time to appeal – extension of time for application – refused – no adequate explanation - whether reasonable prospects of success – relevance of extent of delay
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| Guardianship Division
Decision of: The Hon F Marks, Principal Member; J Currie, Senior Member; L Porter, General Member
Catchwords: APPEAL from decision on review of guardianship order – held no demonstrated error in decision – appeal dismissed
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| | Metrix Developments Pty Ltd v Chen [2021] NSWCATAP 143 Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; D Robertson, Senior Member
Catchwords: Residential Tenancies Act, termination under ss 87 and 88
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| Guardianship Division
Decision of: A Britton, Principal Member; R Booby, Senior Member; M Bolt, General Member
Catchwords: APPEAL — whether the discretion to deal with an internal appeal by way of a new hearing can and should be exercised in circumstances where no question of law raised
WORDS AND PHRASES — meaning of phrase “able to exercise the functions conferred or imposed by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW)
COSTS — whether the discretion to award costs should be exercised where a party has conducted the proceedings in a way that unnecessarily disadvantaged another party
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| Consumer and Commercial Division - Commercial
Decision of: R C Titterton OAM, Senior Member; M Gracie, Senior Member
Catchwords: COSTS – no question of principle
MISCELLANEOUS APPLICATION – release of trust monies and costs
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Senior Member; G K Burton SC, Senior Member
Catchwords: HOME BUILDING - effect of agreement during earlier proceedings and withdrawal of earlier proceedings
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| Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; A Suthers, Principal Member
Catchwords: COSTS – appeal withdrawn – whether r 38A of the Civil and Administrative Tribunal Rules 2014 engaged – whether special circumstances warranting an order for costs shown
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; S Goodman SC, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Non-payment of rent –– No error of law demonstrated – Leave to appeal sought and refused
APPEALS – Whether lack of procedural fairness in Tribunal proceeding ex parte – Failure to comply with direction to file and serve the record of the hearing appealed from
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| Consumer and Commercial Division - Motor Vehicles
Decision of: The Hon F Marks, Principal Member; J S Currie, Senior Member
Catchwords: APPEALS – Tribunal made orders for refund of purchase price of motor vehicle by vendor or respondent and return of motor vehicle to vendor – Tribunal later substituted the name of a different entity as respondent – held no basis for substitution – later orders quashed – earlier orders confirmed with substituted date for return of vehicle
PRACTICE AND PROCEDURE – held section 63 of Civil and Administrative Tribunal Act cannot be used to alter the name of a party to proceedings after the conclusion of a hearing.
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; D Charles, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – contract – written term that any variations to the contract were to be in writing – alleged oral variation – Tribunal not persuaded oral variation occurred - finding of fact not glaringly improbable, contrary to incontrovertible facts or compelling inferences
APPEALS - procedural fairness - failure to give reasons - adequacy of reasons – minimum acceptable standard – standard met
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| Consumer and Commercial Division - Tenancy
Decision of: R Hamilton, Senior Member; D Charles, Senior Member
Catchwords: APPEAL – urgent application to terminate a residential tenancy on harassment and intimidation grounds - no error of law – no substantial miscarriage of justice – leave to appeal refused
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL – failure to comply with directions – adjournment – procedural fairness – contracting parties
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| Consumer and Commercial Division - Tenancy
Decision of: R C Titterton OAM, Senior; G Sarginson, Senior Member
Catchwords: LEASES AND TENANCIES – Residential tenancies – Appeal from Tribunal decision where no evidence filed by Tenant – no question of principle
APPEAL – question of law - adequacy of reasons
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| Consumer and Commercial Division - Social Housing
Decision of: Cowdroy AO QC ADCJ, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEALS — procedure — stay pending appeal — leave to appeal — discharge of orders
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — quiet enjoyment — social housing tenancy agreement
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| Consumer and Commercial Division - Home Building
Decision of: Dr r Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: HOME BUILDING – Miscalculation of amounts
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| Consumer and Commercial Division - Strata
Decision of: Dr r Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: REAL PROPERTY - strata titles - section 80D of the Strata Schemes Management Act 2015 (NSW)
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| Occupational Division
Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – Appeal from interlocutory decision of Tribunal to refuse application for stay – Where respondent issued prohibition order against appellant, prohibiting him from providing certain health services – Where appellant applied for review of the decision to issue prohibition order – Where appellant applied for stay of decision to publish prohibition order and Tribunal dismissed application – Whether leave should be granted to appeal from interlocutory decision – Whether Tribunal has power to stay publication decision
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| Consumer and Commercial Division - Home Building
Decision of: The Hon F Marks, Principal Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty – Compliance with the law – Construction work carried out that did not comply with development consent or construction certificate – Whether in breach of statutory warranty – Whether builder entitled to payment for work – Whether builder repudiated contract – Whether builder entitled to terminate contract by reason of the owner’s non-payment of a progress payment and the exclusion of the builder from the site.
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| | Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159 Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: BUILDING AND CONSTRUCTION - contract -damages – repudiation by home owner – loss of bargain or expectation damages – proper measure of damages – builder entitled to lost profits rather than the balance of payments due under the contract had it not been repudiated
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| Guardianship Division
Decision of: J S Currie, Senior Member; J Moir, Senior Member; L Porter, General Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error of law-failure to take into account mandatory consideration in decision to make guardianship and financial management orders – welfare and interests and views of person with a disability- Guardianship Act 1987 s4(a),(d). No error of law established – appeal dismissed. Leave to appeal – grounds for grant of leave not established – leave to appeal refused.
PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds.
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| Consumer and Commercial Division - Consumer Claim
Decision of: R C Titterton OAM, Senior Member; M Gracie, Senior Member
Catchwords: APPEAL — appeal from decision of the Consumer and Commercial Division - questions of law - self represented appellant - legal standard of care and skill - professional standards and findings of Dental Council - whether Tribunal considered all available causes of action - application of state laws when federal jurisdiction exercised - where the Tribunal failed to take into account relevant considerations and took into account irrelevant matters - new evidence
CONSUMER LAW - professional dental services - consumer guarantees - guarantee of due care and skill - fitness for purpose guarantee - result guarantee
EVIDENCE - expert evidence - where some instructions to expert not established - where some opinions of expert not based on evidence - reasons relied upon to prefer respondent's expert evidence
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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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