NCAT Appeal Panel Decisions Digest Issue 5 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 May 2024: | FHJ v Public Guardian [2024] NSWCATAP 74: An Appeal Panel allowed an appeal from a decision of NCAT, finding that NCAT had erred in its interpretation of s 6 of the Administrative Decisions Review Act 1997 (ADR Act). The appellants were seeking review of a ‘decision’ by the Public Guardian not to act in a prompt and timely manner and failing to make a decision in relation to access to their son. NCAT had found that, as a decision had not yet been made by the Public Guardian, there was no administratively reviewable decision. On appeal, the Appeal Panel held that NCAT had taken a restrictive approach to interpreting the word ‘decision’ in s 6 of the ADR Act and that the Public Guardian should not be afforded an indefinite amount of time to make such a decision due to the duties imposed under s 4 of the Guardianship Act 1987 (NSW). The Appeal Panel was not prepared to suggest this meant an administratively reviewable decision had been made by the respondent but found that because of the erroneous view of the meaning of “decision”, the facts which could lead to a finding there was an administratively reviewable decision had not been properly considered.
| Richards v Lindley [2024] NSWCATAP 91: An Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division of NCAT, remitting the proceedings to the Tribunal for reconsideration. An Appeal Panel found the appellant was a ‘vulnerable person’ within the meaning of r 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) and did not understand the final form of the orders he had consented to at first instance, resulting in him being supplied with an incomplete battery and a bike which was inoperable. In considering the principles applicable to setting aside a consent order, the Appeal Panel held that NCAT at first instance made erroneous and misleading statements as to NCAT’s jurisdiction and the remedies available to Mr Richards, and in combination with Mr Richards’ disability, this prevented him from pursuing his claim for the full amount of his claimed loss, resulting in a substantial injustice.
| GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88: An Appeal Panel allowed an appeal from a decision of the Administrative and Equal Opportunity Division of NCAT to refuse the appellant a firearms licence. The refusal decision was made predominately on the basis that issuing a firearms licence to the appellant would create a risk to public safety because the appellant’s estranged brother, who is a member of an outlaw motorcycle gang, or his associates, might intimidate the appellant into supplying them with firearms. The Appeal Panel held there existed no probative evidence supporting NCAT’s conclusion that the issue of a firearms licence to the appellant would give rise to a real and appreciable risk to public safety. Additionally, to the extent that NCAT stated that “it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety”, it appears to have impermissibly imposed an onus on the appellant, and asked itself the wrong question, resulting in an error of law.
| Shandil v Tahany Pty Ltd [2024] NSWCATAP 82: An Appeal Panel allowed an appeal and remitted the decision to the Consumer and Commercial Division of NCAT, finding that NCAT at first instance had failed to afford the appellant procedural fairness by failing to ensure his representative did not, because of a lack of legal skill, fail to claim rights or put forward arguments that the proceedings should be stayed. The Appeal Panel found that, had the representative been informed of the possible availability of a defence arising by the operation of the principles of Anshun estoppel and the doctrine of abuse of process, she would have sought to rely upon it.
| Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. In circumstances where s 6(5) of the ADR Act does not apply, in that enabling legislation does not prescribe a time period by which a decision must be made, will a failure to make a decision still constitute an administratively reviewable decision for the purposes of s 6 of the ADR Act?
FHJ v Public Guardian [2024] NSWCATAP 74 Administrative and Equal Opportunity Division S Westgarth, Deputy President; R Titterton OAM, Senior Member
In sum: In circumstances where s 6(5) of the ADR Act does not apply, there is a requirement to consider whether the conduct or actions of a decision maker might meet the description of a decision as enlarged by the provisions of s 6(1). The meaning of “decision” within section 6 of the ADR Act needs to be construed in terms of its ordinary meaning, but also in terms of the meaning enumerated in s 6(1)(a)-(g) which specifies conduct which may be considered a ‘decision’ for the purpose of the ADR Act. Additionally, the word ‘decision’ in this context should have been construed considering any duties or obligations imposed on decision makers exercising specific functions under statute, here being the duties imposed on the Public Guardian under s 4 of the Guardianship Act.
Facts: The appellants (a father and stepmother) sought administrative review of a decision made by the respondent “not to act” in a prompt and timely manner. The appellants had proposed to formalise and vary the prior access arrangement they had regarding their son who resides at a supported living facility but, given the significant amount of time that had passed since the proposal, the appellants submitted the respondent should be taken to have refused the appellants’ proposal. The Administrative and Equal Opportunity Division of NCAT dismissed the application for review holding that the fact that a decision had not been made meant there was no administratively reviewable decision. NCAT found that the definition of “decision” contained in s 6 of the ADR Act requires a decision maker to take some positive step to, for example, refuse to make a determination. Additionally, NCAT stated that the only form of inaction that comes within the meaning of “decision” in the ADR Act is that which is set out in s 6(5). Section 6(5) provides that a failure to make a timely decision is taken to be a decision, but this provision will only operate where enabling legislation sets out a time period in which the decision must be made. NCAT found that neither the Guardianship Act nor the Guardianship Regulation 2016 (NSW) imposed such a timeframe. On appeal, the appellants submitted that NCAT misconstrued the meaning of “decision” in the ADR Act and should have considered the application of other legislation such as the general principles imposed under s 4 of the Guardianship Act.
Held (allowing the appeal; remitting the appellants’ application to the Administrative and Equal Opportunity Division of NCAT): (i) NCAT’s construction of the word “decision” as contained in s 6 of the ADR Act was erroneous. On the construction adopted by NCAT at first instance, where statute does not establish the amount of time by which a decision is to be made, a decision maker would appear to have an unlimited amount of time to make a decision (at [25]-[26]). However, the construction of s 6 should not be restricted in this way. The meaning of “decision” in s 6 includes several specified types of activity, enumerated in s 6(1)(a)-(g). The use of the word “includes” indicates the meaning of the word “decision” is enlarged beyond its ordinary meaning (Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253, at [114], [116], [118]). There were other considerations that required deliberation and determination such as considering evidence of the steps taken by the respondent in response to the appellants’ request (at [30]-[32]).
(ii) Section 33 of the Interpretation Act 1987 (NSW) provides that in the interpretation of a provision, “a construction that would promote the purpose or object underlying the Act or statutory rule … shall be preferred to a construction that would not promote that purpose or object.” Section 4 of the Guardianship Act sets out general principles and describes the duties of those exercising functions under the Guardianship Act. Section 4 specifically refers to the importance of preserving family relationships and states that “the welfare and interests of such persons should be given paramount consideration”. Where the respondent had before it a request from the appellants, who have a ‘family relationship’ with the son, the respondent was required to consider that application for access in light of its obligations under s 4 including that the interests of the son be the paramount consideration (at [28]-[29]).
(iii) The respondent did not have an indefinite amount of time to consider the appellants’ access application, instead having the amount of time required to consider the application having regard to its duty to comply with the obligations set out in s 4 of the Guardianship Act. A finding that the respondent had not acted consistently with its obligations under s 4 might have constituted the “doing or refusing to do any other act or thing” thereby constituting a decision under s 6(1)(g) of the ADR Act (at [33]).
(iv) In circumstances where s 6(5) is not applicable, there is a requirement to consider whether the conduct or actions of the respondent might constitute a decision. Had such a consideration taken place, NCAT may have found that an administratively reviewable decision took place. However, the Appeal Panel declined to make any firm finding on this point given the insufficiency of evidence put before NCAT at first instance (at [36]). Similarly, there was no consideration given to s 6(1)(d) which concerns the imposition of a condition or restriction. There appears to be evidence that the provider imposed some restrictions on the first appellant as a result of alleged conduct. Had those facts been before NCAT at first instance, it may have resulted in a finding that a reviewable decision of the kind contemplated by s 6(1)(d) had occurred (at [38]). | 2. Is NCAT obligated to consider the interests of a ‘vulnerable person’ when giving effect to settlement orders?
Richards v Lindley [2024] NSWCATAP 91 Consumer and Commercial Division - General K Ransome, Principal Member; Dr J Lucy, Senior Member
In sum: Rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires NCAT, in deciding whether to give effect to a settlement, to consider the interests of a “vulnerable person”. NCAT Members have an obligation to ensure parties understand the nature of proceedings, the agreements they are entering into and the final form of orders. A breach of these obligations may give rise to a substantial injustice.
Facts: The appellant (Mr Richards) bought a faulty battery for a Zuma i-bike from the respondent (Mr Lindley) which exploded causing a fire destroying the bike and some personal items. At first instance, the parties came to an agreement that Mr Lindley would provide Mr Richards with a replacement second hand bike and battery. The NCAT Member noted in the order that: “the working condition of the replacement Zuma i-bike and battery are unknown”, which on appeal, Mr Richards states was added to the order without his consent. The addition of this notation meant Mr Richards was supplied with an incomplete battery and a bike which was inoperable. At the time, Mr Richards did not query the notation as he has dementia, bipolar disorder and generalised anxiety which affected his ability to respond quickly to the Member. Additionally, Mr Richards claimed NCAT at first instance erroneously told him he could not make a claim for damages against the supplier and would need to claim against Zuma as the manufacturer of the battery. Mr Richards was reluctant to accept a replacement bike without a working battery but accepted the offer on the basis that the Member advised him this would likely be the best outcome he could achieve. On appeal to the Appeal Panel, Mr Richards sought to have the consent orders set aside.
Held (allowing the appeal, remitting the matter for reconsideration): (i) It is common practice for NCAT Members to encourage and facilitate settlement of matters before them (NCAT Act, s 37). However, care must be taken to ensure that, if a Member acts as a facilitator or conciliator, he or she does not act in such a way that would make it inappropriate for the Member to make orders in relation to any agreement or subsequent hearing on the merits. NCAT Members must always act in accordance with the objects set out in s 3 of the NCAT Act and in line with other procedural obligations in the NCAT Act such as ensuring the parties to the proceedings understand the nature of the proceedings (NCAT Act, s 38(3)(a)), and if requested, explaining any aspects of the procedure or any decision or ruling made by the Tribunal that relates to the proceedings (NCAT Act, s 38(3)(b)) (at [31]-[32]).
(ii) In stating that the most Mr Lindley could have been liable for was the cost of a new or replacement battery, the Tribunal Member misunderstood her jurisdiction. It was incorrect to inform Mr Richards that any claim in relation to the destroyed bike could only be brought against the manufacturer and that damage to property could not be claimed. Mr Richards claim clearly falls within the meaning of a “consumer claim” in s 79E of the Fair Trading Act 1987 (NSW) meaning damages would have been available under s 79N of the Fair Trading Act. Mr Richards may also have been able to bring a claim for breach of the consumer guarantees in the Australian Consumer Law based on the poor quality of the battery, such that damages would have similarly been available (at [34]-[39]).
(iii) Mr Richards was significantly influenced by the Member’s inaccurate statements. In combination with Mr Richards’ disability, this prevented him from pursuing his claim for the full amount. Rule 37 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires NCAT, in deciding whether to give effect to a settlement, to consider the interests of a “vulnerable person” being a person who is totally or partially incapable of representing themself in proceedings before NCAT because of a disability, which includes Mr Richards. While the Member was unaware of Mr Richards’ disability, she made no attempt to check he understood or agreed to the final form of the orders made. The Member had an obligation to ensure the parties understood the nature of the proceedings and to ensure Mr Richards understood the agreement he was entering in to. A breach of this obligation resulted in a substantial injustice (at [26], [41]). | 3. What is the correct test for determining whether granting a firearms licence would be contrary to the public interest under s 11(7) of the Firearms Act 1996 (NSW), and who is the onus placed upon?
GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 Administrative and Equal Opportunity Division Hennessy ADCJ, Deputy President; Dr J Lucy, Senior Member
In sum: The correct question in determining whether the grant of a firearms licence is contrary to the public interest is whether issuing a licence to an applicant would entail a real and appreciable risk to public safety. A finding that it is not in the public interest for an applicant to hold a firearms licence must be based on probative evidence. The onus is not placed on the applicant to prove otherwise. Impermissibly imposing such an onus would result in an error of law.
Facts: The appellant (GGW) had been a member of a motorcycle club until the early 1990s, at which point he was expelled as a suspected police informant. The motorcycle club was later declared a criminal organisation. The appellant’s estranged brother remained a member of the motorcycle club after it was declared to be a criminal organisation but the appellant has since severed any criminal associations. The brother lives 550 kilometres away from the appellant, there is animosity between them, and the appellant avoids contact with his brother during the infrequent occasions when the brother visits their mother who lives with the appellant. In 2020, the appellant applied to the respondent (the Commissioner) for a category AB firearms licence, which was refused in 2021 in light of the appellant’s “domestic circumstances” based on the finding that a close family member was affiliated with an outlaw motorcycle gang, thereby creating a risk to public safety. That risk was said to arise because the appellant’s brother, or his associates, might intimidate the appellant into supplying them with firearms. This refusal decision was affirmed on internal review and then again by NCAT at first instance.
At first instance, NCAT found that the appellant was a fit and proper person to hold a firearms licence, but was not satisfied it would be in the public interest to grant him such given his ‘domestic circumstances’. Under s 11(4) of the Firearms Act 1996 (NSW), “a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of … domestic circumstances”. Under s 11(7), the Commissioner may also refuse to issue a licence on the grounds “that issue would be contrary to the public interest”. On appeal, the presiding member indicated to the parties that the Appeal Panel held concerns about whether the Tribunal’s conclusion that it was not in the public interest for the appellant to hold a firearms licence was based on probative evidence, and whether the Tribunal’s remark that the evidence “does not specifically indicate what precautions [the appellant] would take were he to obtain a licence”, erroneously imposed an onus on the appellant.
Held (allowing the appeal; setting aside the decision made at first instance; dismissing the appellant’s application for costs): (i) There is no probative evidence supporting NCAT’s finding at first instance that the grant of a firearms licence to the appellant would give rise to a real and appreciable risk to public safety. The Tribunal’s reasoning at first instance that the brother’s motorcycle club associates would pressure the appellant to supply them with firearms “as has been known to happen in other cases” was speculative. Additionally, NCAT failed to explain how the brother or his associates would know the appellant had been granted a firearms licence or how they would pressure him to supply them with firearms. NCAT’s reliance on a police report that stated the brother said to neighbours in 2013 that he would “sort them out” does not provide any probative evidence as to risk. The Appeal Panel considered the alleged risk to be a “minimum, fanciful or theoretical risk” (Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]) (at [45]-[47]).
(ii) The Appeal Panel accepted the Tribunal’s finding that the appellant had undertaken the prescribed firearms course, including safe storage precautions, and the finding that he was willing to comply with those practices. However, the Appeal Panel found that simply because the appellant failed to “specifically indicate what precautions he would take were he to obtain a licence” was not probative as to a real and appreciable risk to public safety (at [48]). Additionally, to the extent that the Tribunal stated that “it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety”, it appears to have impermissibly imposed an onus on the appellant, and asked itself the wrong question, resulting in an error of law (at [51]-[52]). | 4. Are NCAT Members obliged to inform unrepresented parties of the possibility of defences which may arise in proceedings?
Shandil v Tahany Pty Ltd [2024] NSWCATAP 82 Consumer and Commercial Division - Residential Tenancy S Westgarth, Deputy President; G Blake AM SC, Senior Member
In sum: NCAT Members should ensure unrepresented parties have not, because of lack of legal skill, failed to claim rights or put forward arguments. Such a failure may amount to a failure to afford procedural fairness to a party, such that a practical injustice would arise depriving the party of the possibility of a successful outcome. For example, where the principles of Anshun estoppel and the doctrine of abuse of process apply to NCAT proceedings, NCAT should ensure an unrepresented party is informed of the possibility of a defence arising under these principles.
Facts: A dispute arose between the appellant (Mr Shandil, the tenant) and the respondent (Tahany, the landlord) as to the condition of residential premises Mr Shandil was residing in with respect to water ingress, the safety of electrical switches and the adequacy of repairs that were carried out. Two sets of proceedings were initiated in the Consumer and Commercial Division of NCAT in relation to the dispute. The first were initiated by Mr Shandil against the real estate agency and Tahany, regarding Tahany’s claim for the rental bond. Mr Shandil sought that the full bond be released to him and orders were made for Tahany to provide submissions in relation to the reasons for the bond claim. At the hearing, there was no appearance from Tahany or the real estate and NCAT ordered that Mr Shandil receive payment of the bond. The second proceedings were initiated by Tahany in relation to the deposited rental bond, seeking an order for payment for outgoings, a break fee, repairs and removal of goods. The Tribunal made a money order in favour of Tahany. Mr Shandil appealed this decision to the Appeal Panel.
On appeal, the Appeal Panel considered whether NCAT at first instance failed to afford Mr Shandil procedural fairness because the Tribunal Member failed to ensure that Ms Shandil, who was appearing on behalf of her husband, did not because of a lack of legal skill, fail to claim rights or put forward arguments that the second proceedings initiated by Tahany be stayed as an abuse of process.
Held (allowing the appeal, remitting the matter to the Consumer and Commercial Division of NCAT): (i) The following principles raised by the Court of Appeal in Stokes v Toyne [2023] NSWCA 59 should be considered in NCAT matters where Anshun estoppel and the doctrine of abuse of process may arise (at [58]): | a. the power to grant a permanent stay is to be exercised only in the most exceptional circumstances; b. all relevant circumstances, whether objective or subjective, may be relevant to a plea of Anshun estoppel or a submission that proceedings constitute an abuse of process; c. the concepts of Anshun estoppel and associated abuse of process are fundamentally distinct; d. the principles of Anshun estoppel preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding; e. the Anshun principle will not generally apply to cross-claims, save for a situation in which the relief claimed in the second proceeding is inconsistent with the judgment in the first; f. the doctrine of abuse of process is inherently broader and more flexible than res judicata, issue estoppel or Anshun estoppel and is capable of applying in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute; g. in considering an abuse of process courts have emphasised the importance of provisions equivalent to s 36(1), (2) and (3) of the NCAT Act which relate to the guiding principle of the NCAT Act, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings; h. non-compensable inconvenience and stress on individuals are highly relevant in the assessment of proceedings as oppressive; i. an important distinction between a claim for a stay of proceedings by reason of Anshun estoppel and a claim for a stay by reason of abuse of process lies in timing. The claim for a stay by reason of Anshun estoppel must necessarily be determined by (at the latest) reference to circumstances that pertained at the time of the proceeding in which, it is asserted, a separate and subsequent claim should also have been pursued. A claim for a stay of proceedings by reason of abuse of process is to be determined by reference to circumstances existing, at the earliest, at the time of commencement of the proceeding sought to be stayed. | (ii) NCAT at first instance was on notice of the existence of the deposited rental bond and that a claim had been made in favour of Tahany. Where, under s 166(1)(a) and (b) of the Residential Tenancies Act 2010 (NSW), a landlord is entitled to claim the reasonable cost of repairs as a result of damage caused by the tenant from the rental bond, the Appeal Panel was satisfied that the Member was obliged, pursuant to s 36(6)(a) of the NCAT Act, to raise with the parties the fact that the bond had already been released. That inquiry would have led to the disclosure of the existence of the first proceedings to the Member. This in turn would have required the Member to inform Ms Shandil of the possible availability of a defence based on the principles of Anshun estoppel and the doctrine of abuse of process arising from the failure of Tahany to have raised its claim as required by the orders made in the first proceedings which had expressly sought submissions in relation to the bond. The Appeal Panel was satisfied than an inference could be drawn that had Ms Shandil been informed of the possible availability of such a defence, she would have sought to rely upon it (at [61]-[63]). | (iii) It follows that NCAT at first instance failed to afford procedural fairness to Mr Shandil by reason of the Member failing to ensure that Ms Shandil did not, because of a lack of legal skill, fail to claim rights or put forward arguments that the Tahany proceedings should be stayed as an abuse of process. This denial of procedural fairness resulted in a practical injustice wherein Mr Shandil was thereby deprived of the possibility of a successful outcome in the second proceedings initiated by Tahany in NCAT (at [64]-[65]). | | | GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68 Consumer and Commercial Division - Home Building Decision of: K Ransome, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEALS – Whether Tribunal denied the appellant procedural fairness by refusing its adjournment application – Whether Tribunal’s discretion miscarried when refusing adjournment application – Whether Tribunal erred in finding that certain defects were “major defects” and that it had jurisdiction in relation to the respondents’ building claim – Whether the Tribunal's findings that certain defects were “major defects” were made without probative evidence to support them – Whether the Tribunal erred in finding that the appellant was a party to the home building contract with the respondents. | Zonnevylle v Secretary, Department of Education [2024] NSWCATAP 69 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEALS — whether time to file notice of appeal should be extended — whether leave to appeal should be granted — whether appellant demonstrated error on question of law or on any other ground. | YFX v NSW Trustee and Guardian [2024] NSWCATAP 70 Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; R Booby, Principal Member; F Given, General Member Catchwords: APPEAL – whether time to appeal order for financial management should be extended – whether appellant demonstrated error on a question of law – whether leave to appeal should be granted. | Stojonoff v Webber [2024] NSWCATAP 71 Consumer and Commercial Division - General Decision of: G Blake AM SC, Senior Member; P Durack SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Procedural fairness – Whether Tribunal member fell asleep during hearing APPEALS — Revocation of order dispensing with hearing of appeal. | TJM Holdings Pty Ltd v Woori International Pty Ltd [2024] NSWCATAP 72 Consumer and Commercial Division - Commercial Decision of: G Burton SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS – Application to extend time – set aside application – no error on a question of law – no basis for granting leave to appeal – exercise of discretion. | | FHJ v Public Guardian [2024] NSWCATAP 74 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; R Titterton OAM, Senior Member Catchwords: APPEALS – whether the Tribunal in erred in finding that the fact that a decision had not been made was not an administratively reviewable decision. ADMINISTRATIVE LAW – meaning of “decision” for the purposes of the Administrative Decisions Review Act 1997 (NSW) ADMINISTRATIVE LAW - whether the respondent erred in failing to consider s 4 of the Guardianship Act 1987 (NSW) failing to make a decision in relation to a person with disabilities. | Heng v Tynan Motors Pty Ltd [2024] NSWCATAP 75 Consumer and Commercial Division - Motor Vehicle Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: APPEALS — leave to appeal — assessment of competing evidence concerning whether or not a logbook was to be supplied with the sale of a motor vehicle — Tribunal evaluated relevant evidence — whether decision not fair and equitable or against the weight of evidence — no substantial miscarriage of justice. | Yu trading as Ebenesel Landscapes v Kong & Cha [2024] NSWCATAP 76 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEALS- BUILDING AND CONSTRUCTION – no error on a question of law established – whether the decision of the Tribunal was against the weight of the evidence - whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice. | Paterson v Lund atf Nenedale Family Trust t/as Kingscliff Accommodation [2024] NSWCATAP 78 Consumer and Commercial Division - General Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: CONSUMER LAW — failure to supply particular accommodation — offer of alternative accommodation — right to claim refund where said no benefit received — acceptance of alternative accommodation for same period — whether total failure of consideration — claim for wasted expenditure ancillary to accommodation cost — damages for distress and disappointment — assessment of damages. | Peppernell v McCrae [2024] NSWCATAP 79 Consumer and Commercial Division - Commercial Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member Catchwords: APPEALS — errors other than errors of law — no question of principle. | Gardiner v NSW Land and Housing Corporation [2024] NSWCATAP 80 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: LEASES AND TENANCIES-social housing tenancy agreement-termination pursuant to s 92 of the Residential Tenancies Act 2010 (NSW)-intimidatory and abusive conduct by the tenant during a conciliation at the Tribunal-competing version of relevant events-landlord’s version of events preferred-mitigating circumstances put forward by tenant concerning breaches by landlord -statutory discretion to terminate-mandatory considerations under s 154E-other relevant considerations, including gravity of conduct, absence of contrition and the tenant becoming homeless. APPEAL-various questions of law raised, including legal unreasonableness-grounds of appeal raising questions of law rejected-leave to appeal requirements for appeal from Consumer and Commercial Division of the Tribunal according to clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW)-appellant’s reliance upon leave to appeal ground of new evidence not reasonably available at the time of the hearing at first instance-grounds for leave to appeal not upheld. | MDR Design and Construction Pty Ltd v Ferguson (No 2) [2024] NSWCATAP 81 Consumer and Commercial Division - Home Building Decision of: A Bell SC, Senior Member; P Durack SC, Senior Member Catchwords: APPEAL – home building – costs of appeal – appellant successful on appeal-issue on appeal remitted for redetermination – appellant did not dispute that it should receive no more than one half of its costs due to disentitling conduct – respondents sought orders for costs of the appeal to follow ultimate outcome following redetermination. | Shandil v Tahany Pty Ltd [2024] NSWCATAP 82 Consumer and Commercial Division - Residential Tenancy Decision of: S Westgarth, Deputy President; G Blake AM 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 the Tribunal failed to ensure the representative of the respondent did not, because of a lack of legal skill, fail to claim rights or put forward arguments – Failure to afford procedural fairness established APPEALS — Procedure — Time limits — Extension of time – application granted CIVIL PROCEDURE — Self-represented litigant — Duty of Tribunal to assist — Extent of Tribunal’s obligations. | Lane v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] NSWCATAP 83 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; A Boxall, Senior Member Catchwords: JUDGEMENTS AND ORDERS – res judicata and issue estoppel – applicable principles – application where party not a party to the proceedings – Anshun estoppel – principles applicable – abuse of process – subsequent proceedings where issue lost in earlier proceedings by party propounding issue EQUITABLE DEFENCES – equitable set-off – availability in Tribunal proceedings – principles applicable – ability to set-off judgement in Local Court against claim in Tribunal dealing with the same subject matter. | | Chatterjee v Pandya [2024] NSWCATAP 85 Consumer and Commercial Division Decision of: G Sarginson, Senior Member; E Bishop SC, Senior Member Catchwords: APPEALS — Error on a question of law — Procedural fairness — Retaliatory eviction — Issue not raised and considered by Tribunal at hearing — Whether failure to raise issue constitutes denial of procedural fairness LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Retaliatory eviction — s 115 of the Residential Tenancies Act 2010 (NSW) — Circumstances in which issue can be raised in response to application to terminate tenancy under s 85 of the Residential Tenancies Act 2010 (NSW). | Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86 Consumer and Commercial Division - Home Building Decision of: L Wilson, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – Particular Bodies – NCAT – power to correct decisions under s 63 of the Civil and Administrative Tribunal Act 2013 – whether own motion decision to amend previous order by increasing amount claimed is the correction of an obvious error. APPEALS – leave to appeal – whether decision under s 63 of the decision Civil and Administrative Tribunal Act 2013 is an ancillary or interlocutory decision – whether leave to appeal required - leave to appeal granted. BUILDING AND CONSTRUCTION –uninsured building work – builder given leave to recover on a quantum meruit for identified work – s 94 Home Building Act 1989 – whether part-payments made by homeowner to be taken into account and credited to homeowner when calculating amount owning on quantum meruit – whether part-payment for work can be set-off against amount claimed for work on quantum meruit - equitable set-off - onus on builder to prove work done. | | GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr J Lucy, Senior Member Catchwords: APPEALS – Firearms – Decision to refuse to grant appellant a firearms licence - Finding that issuing a licence to the appellant would entail a real and appreciable risk to public safety – Whether finding was supported by probative evidence – Whether Tribunal asked itself the wrong question.
| Tikkun v Leggett [2024] NSWCATAP 89 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; S de Jersey, Senior Member Catchwords: LEASES AND TENANCIES - Boarding house - claim for compensation rejected at first instance - no error of law shown - no basis for granting leave to appeal - no question of principle. | McAdam v McAdam [2024] NSWCATAP 90 Consumer and Commercial Division Decision of: Dr J Lucy, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – NCAT made orders in residential tenancy dispute between residents of different States – NCAT had no power to do so as it involved an exercise of federal jurisdiction exercisable by courts of a State - Judiciary Act 1903 (C’th) – NCAT is not a court of NSW – appeal allowed. | Richards v Lindley [2024] NSWCATAP 91 Consumer and Commercial Division - General Decision of: K Ransome, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEALS — appeal from consent orders — negotiations facilitated by Tribunal — Tribunal made error as to jurisdiction and powers — relevant principles — vulnerable applicant. | Ahmed v Phase Projects Pty Ltd [2024] NSWCATAP 92 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; G Blake AM SC, Senior Member Catchwords: APPEALS – consumer claim – whether Tribunal constructively failed to exercise its jurisdiction – interpretation of an agreement for provision of services – order for remittal for the purposes of calculation of damages. | Allsopp v Owners Corporation SP6006 [2024] NSWCATAP 93 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: COSTS – award for costs where appeal dismissed for non-appearance of appellant – special circumstances – appellant failing to appear at hearing of appeal despite expressly requesting a hearing – failure to comply with duty under s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for lump-sum award of costs – principles applicable to fixing lump-sum. | Eastman v Nepean Blue Mountains Local Health District [2024] NSWCATAP 94 Administrative and Equal Opportunity Division Decision of: Armstrong J, President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW — government information — sufficiency of search — whether documents withheld were excluded information in respect of which there was a conclusive presumption against disclosure — whether there was an overriding public interest against disclosure APPEALS — whether denial of procedural fairness — questions of law — whether leave to appeal should be granted. | YHE v YHF [2024] NSWCATAP 95 Guardianship Division Decision of: A Britton, Deputy President; A Boxall, Senior Member; M Bolt, General Member Catchwords: GUARDIANSHIP — financial management — review of appointment of private manager of protected person — whether it is in the best interests of protected person that the appointment of manager be revoked GUARDIANSHIP — financial management —whether the decision that it is in the best interests of protected person that the appointment of the manager be revoked was irrational or illogical and not based on findings or inferences of fact supported by logical grounds GUARDIANSHIP — financial management —fiduciary obligations of manager — scope of authority of manager — manager subject to authorities and directions of NSW Trustee and Guardian APPEALS — Appeal to Appeal Panel from Guardianship Division of NSW Civil and Administrative Tribunal — role of Appeal Panel in determining whether appeal raises question of law. | Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 Consumer and Commercial Division - Residential Communities Decision of: Seiden SC DCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: RESIDENTIAL COMMUNITIES — whether the Tribunal had jurisdiction to make orders under the Residential (Land Lease) Communities Act 2013 (NSW) — whether the Applicant’s residency was governed by the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) — whether the Appellant is unable to raise the issue of jurisdiction on appeal when jurisdiction was conceded at first instance — whether the Tribunal erred in declaring the site fee increase to be excessive. | Trappel v Legal Aid Commission of New South Wales [2024] NSWCATAP 97 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: HUMAN RIGHTS CASE – indirect discrimination – pregnancy – carer’s responsibilities – sex discrimination – condition or requirement – failure to offer employment following expiry of short-term contract. | TJM Holdings Pty Ltd v Woori International Pty Ltd (costs) [2024] NSWCATAP 99 Consumer and Commercial Division - Commercial Decision of: G Ellis SC, Senior Member; G Burton SC, Senior Member Catchwords: COSTS - Whether Civil Procedure Act 2005 (NSW) applies - whether bill of costs in taxable form required - r 38A and r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applied - costs to be determined by assessment if not agreed. | Best Buy Auto Prestige Pty Ltd v Kaljund [2024] NSWCATAP 100 Consumer and Commercial Division - Motor Vehicle Decision of: S Thode, Principal Member; G Ellis SC, Senior Member Catchwords: APPEALS- CONSUMER LAW– no error on a question of law established - whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice. | Samia v Foster & The Owners – Strata Plan No 67743 [2024] NSWCATAP 101 Consumer and Commercial Division - Strata Scheme Decision of: S Thode, Principal Member; E Bishop SC, Senior Member Catchwords: APPEAL — question of law — where owners corporation was dysfunctional — where the Tribunal appointed compulsory strata manager — whether the appellant was denied procedural fairness — whether there was bias — whether Tribunal excluded evidence which was admissible — no error of law — no issue of principle. | | 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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