| | | | | NCAT Appeal Panel Decisions Digest Issue 6 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 June 2021:
- Cui v CLSA Premium Pty Ltd [2021] NSWCATAP 176 - In which the Appeal Panel found that the Tribunal did not have jurisdiction to hear a matter where the cause of action accrued more than three years before proceedings were commenced at the Tribunal.
- McGrath v The Owners – Strata Plan No 13631 [2021] NSWCATAP 167 - In which the Appeal Panel dismissed the appeal of a lot owner who sought to appeal against the decision of the Tribunal to refuse to permit into evidence expert reports relevant to the existence of mould in the lot. The Tribunal had refused to allow the reports into evidence because they did not comply with a procedural direction of the Tribunal issued under s 26 of the Civil and Administrative Tribunal Act 2013 (NSW), and the Appeal Panel found that the Tribunal did not err in making this decision.
- ZUR v ZUS [2021] NSWCATAP 175 - In which the Appeal Panel allowed the appeal of the appellant, who sought to be reappointed to hold enduring power of attorney for his father, the respondent.
- Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 - In which the Appeal Panel allowed the appeal of an appellant who had appealed against a decision of the Consumer and Commercial Division restricting her from joining a former landlord to her claim. The Tribunal made an error of law in misinterpreting the Residential Tenancies Act 2010 (NSW) and denied the appellant procedural fairness. The matter was remitted to the Tribunal.
- Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 - In which the Appeal Panel dismissed an appeal by the appellant challenging the Tribunal’s authority to decide her application under the GIPA Act concluding that in determining such application the Tribunal is conducting a merits review of a decision of the executive government, and not exercising State judicial power.
- Constantidis v Sigalas [2021] NSWCATAP 189 - In which the Appeal Panel refused leave to appeal and dismissed the appeal of two tenants who sought to appeal from a decision of the Tribunal which found in favour of their landlord, and made orders for payment of rental arrears and the termination of the tenancy.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Consumer Claim
S Thode, Senior Member; A Boxall, Senior Member
In sum: The Appeal Panel found that the Tribunal did not have jurisdiction to hear a matter where the cause of action accrued more than three years before proceedings were commenced at the Tribunal.
Facts: When opening a trading account with the respondent financial firm, the appellant electronically confirmed that he had read and understood the terms and conditions of the respondent’s Client Services Agreement (CSA) and Product Disclosure Statement (PDS). The appellant says that the respondent did not disclose that it could charge daily fees on certain contracts and cancel certain orders each day without the appellant’s permission. The appellant complained to the respondent about this alleged failure to disclose, but continued to trade and incurred further losses ([4]-[7]).
The appellant complained to the Australian Financial Complaints Authority (AFCA) and appealed to the Ombudsman, which ordered the respondent to pay the appellant USD 692 plus $250 in compensation. The Ombudsman found that although the fees were disclosed in the PDS, the respondent should have done more to bring the special terms to the appellant’s attention. It also found that the appellant had failed to mitigate his loss by continuing to trade after he made the complaint, and therefore the respondent was not responsible for losses after the complaint was made ([8]-[12]).
The appellant commenced proceedings at the Tribunal, which upheld the Ombudsman’s findings that the respondent was not liable after the complaint. The Tribunal found that the Tribunal had no jurisdiction to hear and determine the consumer claim in cases because the application was filed more than three years after the cause of action arose, but rather than dismissing the application for want of jurisdiction the Member determined that he could enter a money order in the sum of USD 692.10. The appellant appealed to the Appeal Panel, seeking $16,511 for losses and damages ([1], [13], [15]-[17]).
Held (dismissing the appeal):
(i) In the context of s 79L of the Fair Trading Act 1987 (NSW) (FTA), “cause of action giving rise to the claim” refers to the set of facts which support a right to an order by the Tribunal. The cause of action the appellant relies upon arises from a breach of contract, being the failure to disclose a stop loss option. No cause of action relating to the alleged losses first accrued within the three years prior to the commencement of proceedings at the Tribunal pursuant to s 79L of the FTA, all transactions relied on having occurred almost four years prior. Having arrived at these findings it was not open to the Tribunal to consider the application further and the proceedings should have been dismissed ([38]-[44]).
(ii) The appellant’s changed approach and submission that the cause of action accrued when the first AFCA decision was published, and that it was the Ombudsman’s adverse finding that the appellant failed to mitigate his losses that gave rise to a consumer claim, was rejected. The Appeal Panel could not be satisfied that a decision of the AFCA gives rise to a “consumer claim” within the meaning of the FTA, or that adverse findings or orders by the AFCA Ombudsman can give rise to a cause of action pursuant to s 79L. This is because, first, the AFCA and/or the Ombudsman are not named respondents to the application or appeal; and second, the Tribunal has no jurisdiction to revisit findings or orders made by the AFCA or its Ombudsman. The appeal was therefore dismissed ([45]-[47]).
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| Consumer and Commercial Division - Strata
G Curtin, Senior Member; J Lucy, Senior Member
In sum: The Appeal Panel dismissed the appeal of a lot owner who sought to appeal against the decision of the Tribunal to refuse to permit into evidence expert reports relevant to the existence of mould in the lot. The Tribunal had refused to allow the reports into evidence because they did not comply with a procedural direction of the Tribunal issued under s 26 of the Civil and Administrative Tribunal Act 2013 (NSW), and the Appeal Panel found that the Tribunal did not err in making this decision.
Facts: The appellant is a lot owner who complained that the respondent (the Owners Corporation) had failed to comply with its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) to properly maintain and keep in a state of good and serviceable repair the common property. In relation to a complaint of mould, the appellant sought to submit two expert reports as evidence, but failed to ensure they complied with and order to comply with Procedural Direction 3. Consequently, the Tribunal refused admit part of one report and the whole of the other into evidence, and rejected any claim for relief in relation to mould. The appellant appealed on the basis that Procedural Direction 3, made pursuant to s 26 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) was inconsistent with s 38(2) of that Act, which says the Tribunal is not bound by the rules of evidence ([1]-[4], [18], [20]).
Held (dismissing the appeal):
Ground 1
(i) While the Tribunal is not bound by the rules of evidence, that does not mean that the Tribunal may not apply them in appropriate circumstances, or at least apply them by analogy. The rules of evidence exist to ensure the process if fair for the parties, and this is in accordance with NCAT’s guiding principle of ensuring the just, cheap and quick resolution of the real issues ([37], [39]).
(ii) The Tribunal must be satisfied that expert evidence provides a satisfactory basis upon which the Tribunal can make its findings, and therefore will need to conform with the usual requirements for expert evidence, as set out in Procedural Direction 3. The insistence on being provided with a satisfactory basis for the findings sought (by compliance with Procedural Direction 3) is different to a question of admissibility per the rules of evidence, although the distinction may perhaps be a fine one ([44]-[45]).
(iii) The Tribunal does have power to order that a party may only submit into evidence an expert’s report if that report is accompanied by an affidavit, or a statement containing the report which complies with Procedural Direction 3 is provided. That power is not an implied “repeal” or “amendment” of s 38(2) of the NCAT Act because it does not attempt to apply any “rule of evidence”, but rather is a power exercised in order for the Tribunal to be satisfied (in appropriate cases) that the expert evidence provides a satisfactory basis upon which the Tribunal can make its findings. Compliance with Procedural Direction 3 was mandated because the Tribunal specifically turned its mind to the question of whether it should be complied with in this case ([47]-[48]).
(iv) At the Supreme Court, parties are typically represented and therefore lawyers, bound by a code of conduct, assist in the preparation of expert reports. In contrast, at the Tribunal, where parties are commonly self-represented and not bound by ethical codes, the code of conduct prescribed by Procedural Direction 3 will assist to ensure that experts’ reports provide a satisfactory basis for the findings to be sought at a hearing ([49]-[51]).
Ground 2
(v) The appellant’s submission that because the second report was an addendum to the first report and could be considered as an examination, test or other investigation relied on by the author of the first report pursuant to cl 19(g) of Procedural Direction 3, the author of the second report did not need to read and acknowledge and agree to be bound by Procedural Direction 3, was not accepted. The submission elevates form over substance, and ignores the fact that opinions, a critical feature of an expert report, formed the gravamen of the second report ([59], [61], [63]-[64], [67]).
Ground 4
(vi) Appeals against a discretionary decision are only available in limited circumstances, including failure to take into account, or giving insufficient weight to, some relevant matter, as was alleged by the appellant. Although the appellant submits that what is challenged is the decision whether or not to admit evidence, per s 38(2), the ground in fact challenges the decision not set aside the order to follow Procedural Direction 3, which, although an interlocutory order, remained extant until and unless the Tribunal set it aside, which was not done. None of the matters identified by the appellant address, as a matter of substance, the basal considerations at play in the decision not to set aside this order.
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| Guardianship Division
A D Suthers, Principal Member; J Moir, Senior Member (Legal); J V Le Breton, General Member (Community)
In sum: The Appeal Panel allowed the appeal of the appellant, who sought to be reappointed to hold enduring power of attorney for his father, the respondent.
Facts: In July 2017 the respondent, an elderly man who suffers from cognitive impairments, appointed the appellant and the appellant’s sister as guardians and enduring attorneys. In November 2017 the respondent appointed the appellant’s sister and her husband as enduring attorneys, and subsequently in January 2018 revoked the appellant’s appointment. In February 2018 the Tribunal ordered the sister and brother-in-law to be appointed as joint financial managers for the respondent. On application by the sister and brother-in-law, the Tribunal reviewed and revoked this financial management order in November 2018 on the basis that it was in the respondent’s best interests. The appellant and his sister and brother-in-law have made allegations against each other of financial abuse, misuse of powers of attorney and neglect of the respondent. The appellant sought further review, and questioned his sister and brother-in-law’s assertions that the respondent had made certain decisions, including selling his own home, making investments, reimbursing the sister and brother-in-law for various expenses allegedly incurred on his behalf, and making gifts to their children. The sister and brother-in-law claim that they do not substitute financial decisions for the respondent, but rather facilitate the respondent’s decisions ([1]-[9], [22]).
Held (allowing the appeal):
(i) The Tribunal’s reasons are notable not for what the contain, but for what they do not. It is an error on a question of law for the Tribunal to fail to properly engage with a party’s clearly articulated case. The error may be described as a failure to afford procedural fairness or a constructive failure to exercise jurisdiction ([19], [26]).
(ii) There were factors that made it critical for the Tribunal to engage with the question of the respondent’s capacity to make his own financial decisions, including, among other things, the medical evidence, the competing views of the parties, and the fact that the power of attorney being reviewed gave no power to the attorneys to benefit themselves or others, nor to give gifts ([27]).
(iii) At common law, and pursuant to s 25P of the Guardianship Act 1987 (NSW), there is a rebuttable presumption that once a person is found to be incapable of managing their own financial affairs, that state continues until a court or tribunal is satisfied otherwise, on the basis of equally probative and cogent evidence as that on which the first decision was made ([28]).
(iv) If the respondent cannot manage his financial affairs, as the Tribunal previously found, then the sister and brother-in-law’s operation on the power of attorney may have been inappropriate to the extent that they benefitted themselves and others or conferred gifts. Even if they say they were unaware that they were doing more than implementing decisions made by the respondent, the question arises as to the bona fides of that position and the extent of any obligation on them to be able to demonstrate that they are correct or to have investigated the issue to meet their duty to the respondent ([29]).
(v) In the circumstances of the case the Tribunal’s lack of any reference to the above-mentioned issues suggests that it either: (a) failed to properly engage with the case put by the appellant; or (b) failed to give sufficient reason for its decision. The appeal was therefore allowed and remitted to the Guardianship Division for determination ([30]-[31]).
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| Consumer and Commercial Division - Social Housing
Cole DCJ, Deputy President; D Fairlie, Senior Member
In sum: The Appeal Panel allowed the appeal of an appellant who had appealed against a decision of the Consumer and Commercial Division restricting her from joining a former landlord to her claim. The Tribunal made an error of law in misinterpreting the Residential Tenancies Act 2010 (NSW) and denied the appellant procedural fairness. The matter was remitted to the Tribunal.
Facts: The appellant is a tenant of the respondent, and was formerly a tenant of the Land and Housing Commission (LAHC) until April 2019 in the same residential premises. In May 2018 the appellant commenced proceedings against the LAHC at the Tribunal, which made orders for the LAHC to comply with its obligation under s 50(3) of the Residential Tenancies Act 2010 (NSW) (RT Act) to take all reasonable steps to ensure that its other neighbouring tenants do not interfere with the reasonable peace, comfort and privacy of the appellant. The appellant instigated other proceedings against the LAHC. In August 2019, at the request of the LAHC’s representative, the respondent was substituted for the LAHC in proceedings, with no objection from the appellant. In July 2020 the Tribunal refused the appellant’s application to join the LAHC as a respondent to the proceedings, because the LAHC was no longer a landlord and the Tribunal therefore did not have jurisdiction to make an order against it under the RT Act ([5]-[6], [16], [22]).
Held (allowing the appeal):
(i) The appellant’s submission that the Tribunal erred in its construction of the words “all reasonable steps” as per s 50(3) was rejected. The respondent was not, as the appellant submits, obliged to follow its Antisocial Behaviour Management Policy when dealing with the behaviour of the appellant’s neighbours; this is a policy document of the Department of Communities and Justice, and the respondent is not bound by it. In taking “all reasonable steps” the respondent was not bound to do everything possible which was not unreasonable; rather, the respondent was required to take all the reasonable steps objectively required, as necessary. This could involve the landlord choosing between different, reasonable steps from time to time. It is not to be expected that a landlord will all at once impose a barrage of measures, at great expense and effort, to address a mild complaint of minor anti-social behaviour ([29]-[30], [33], [40]-[41]).
(ii) The respondent was not liable for the LAHC’s actions with respect to the appellant’s lease prior to April 2019. As a matter of contract law, a crystallised obligation under a lease cannot be assigned from one person to another. It can be transferred by a novation, but there is no evidence, and no suggestion, that a novation agreement was entered into ([43]-[44]).
(iii) The appellant did not claim that the respondent should be liable for the actions of the LAHC; rather, she argued that she was deprived of the opportunity to hold the LAHC, as her landlord during the period from December 2018 (the first incident complained of in her initiating application) to April 2019, accountable for its alleged actions, or alleged lack of action, in relation to her complaints about her neighbour, and seek compensation under s 187(1)(d) of the RT Act ([45], [49]).
(iv) The failure of the appellant, who was unrepresented throughout, to raise an objection to the substitution of the respondent for the LAHC in these proceedings was based on the mistaken belief that the respondent had been transferred all obligations to her as landlord that were previously held by the LAHC. This mistaken belief was corrected by neither the Tribunal nor the representation for the respondent. The appellant was not afforded procedural fairness in that she was not made aware of the critical issue that the substitution of the respondent as the respondent to her action could limit the ambit of her claim. This gave rise to a practical injustice ([51], [59]-[60]).
(v) In refusing the appellant’s application to join the LAHC as a respondent to the proceedings, the Tribunal made an error of law. The Tribunal did have jurisdiction to join the LAHC as a respondent and make orders, because s 189 allows the Tribunal to make orders in respect of former landlords. Because of the denial of procedural fairness and the erroneous interpretation of the RT Act, the appellant was unfairly deprived of the opportunity to pursue her claim against the LAHC for the period December 2018 to April 2019. As such the matter was remitted to the Consumer and Commercial Division to determine whether the LAHC should be joined to proceedings and, if so, to hear the compensation claim against the LAHC ([64]-[65], [69]).
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| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; D Fairlie, Senior Member
In sum: The Appeal Panel dismissed an appeal by the appellant challenging the Tribunal’s authority to decide her application under the GIPA Act concluding that in determining such application the Tribunal is conducting a merits review of a decision of the executive government, and not exercising State judicial power.
Facts: The appellant, a resident of Tasmania, challenged the Tribunal’s authority to determine her application for review of a decision by the respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Relying on the principle set out in Burns v Corbett [2018] HCA 15 (Burns), the appellant argued that the Tribunal was exercising State judicial power and did not have authority to do so when the proceedings were between a State and a resident of a different State. The Tribunal accepted that the respondent, Blue Mountains City Council, is the State of NSW and the appellant is a resident of a different State, being Tasmania. On those facts, these proceedings constituted a “matter” within federal jurisdiction under s 75(iv) of the Commonwealth Constitution ([1], [7]).
The question for determination was whether the Tribunal is exercising State judicial power when determining an application for review under the GIPA Act. If it is, it does not have the authority to do so when the proceedings are between a State and a resident of a different State ([10]).
Held (dismissing the appeal):
(i) It is well established that NCAT is not a “court of a State” within the meaning of the term set out in s 77(iii) of the Constitution and therefore does not have the authority to decide matters within federal jurisdiction: Burns at [39] ([10]).
(ii) The nature of judicial power is concerned with the exercise of adjudicative authority for the purpose of “quelling controversies about legal rights and legal obligations…”: Burns at [21]) ([11]).
(iii) It is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy: PJB v Melbourne Health (2011) 39 VR 373 at [124] ([13]).
(iv) It is necessary to distinguish between NCAT’s “original” and “review” jurisdictions. For example, when determining a first instance dispute, the Tribunal is exercising original jurisdiction and, in essence, is carrying out “a statutory function that in some ways resembles the exercise of judicial power”. In contrast, when exercising its review jurisdiction, the Tribunal is “plainly engaged in a purely administrative task”: Morris Riverwild Management Pty Ltd (2011) 38 VR 103 at [63] ([16]).
(v) With that being said, the Appeal Panel was of the view that the principle in Burns did not apply on the basis that, in administrative review proceedings under the GIPA Act, the Tribunal is conducting a merits review of a decision of the executive government and not exercising State judicial power ([1]).
(vi) In Barnsley v Darebin City Council [2021] VCAT 104 (Barnsley), Quigley J concluded at [43] that the review of the responsible authority’s decision by the Tribunal, pursuant to the relevant provisions, is a review of the initial administrative decision in which the Tribunal stands in the shoes of the original decision-maker. The decision of the Tribunal to grant a permit in Barnsley created a new right and did not determine existing rights. This power exercised fit squarely within such a definition of an exercise of administrative power ([14]).
(vii) The Appeal Panel was of the view that the Tribunal was not exercising State judicial power when determining the application under the GIPA Act, but rather it was exercising administrative power in conducting a merits review of a government decision ([17]).
(viii) Consequently, Tribunal has authority to determine administrative review applications under the GIPA Act even if one party is the State of NSW and the other party a resident of a different State ([17]).
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| Consumer and Commercial Division - Tenancy
S Westgarth, Deputy President; P H Molony, Senior Member
In sum: The Appeal Panel refused leave to appeal and dismissed the appeal of two tenants who sought to appeal from a decision of the Tribunal which found in favour of their landlord, and made orders for payment of rental arrears and the termination of the tenancy.
Facts: The respondent applied to the Tribunal for termination, possession and rental arrears in relation to residential premises leased by the respondent to the appellants. The appellants appealed against the Tribunal’s decision in the respondent’s favour, which found the appellants not to be COVID impacted tenants pursuant to the Residential Tenancies Regulations 2019 (NSW), reg 41C of which prohibits landlords from terminating rental agreements or recovering possession during the moratorium period.
Held (refusing leave to appeal and dismissing the appeal):
(i) The appellants were not permitted to submit a bundle of documents, known as Bundle A, as evidence before the Appeal Panel, because, despite specific directions from the Tribunal, the appellants failed to submit with it any evidence that the bundle had been before the Tribunal at a hearing in October 2020 and the Tribunal did not have regard to it, as the appellants claimed. Any documents from Bundle A that were also contained in a separate document bundle were also not admitted as part of that bundle. Further, any evidence from after the October 2020 hearing was not admitted ([24]-[27], [31]-[32]).
(ii) The appellants were not denied procedural fairness by the admittance into evidence of the respondent’s materials after the expiry of the time for filing. The documents were provided six days before the hearing and was then updated at the hearing, and admitting them helped to facilitate the just, quick and cheap resolution of the real issues. The appellants could not have been taken by surprise, prejudiced or otherwise disadvantaged by anything in the documents, as it was information reasonably known to them ([51]-[53]).
(iii) A decision by a differently constituted Tribunal regarding a tenancy between the second appellant and a different landlord in which the second respondent was determined to be a COVID impacted tenant is not relevant to these proceedings. While that decision was binding on the parties involved in that case, it is not binding on differing parties, or when the subject of proceedings is a different tenancy agreement ([62]-[63]).
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| | | Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; J McAteer, Senior Member
Catchwords: APPEAL – LAND LAW - Residential Tenancy – failure by Tribunal to provide reasons – set aside
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| Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; A R Boxall, Senior Member
Catchwords: HOME BUILDING - basis of costs orders with remaining areas of dispute but largely by consent - effect of calderbank offer
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| Grandview Pty Ltd v Bacon (No 2) [2021] NSWCATAP 164
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; A Boxall, Senior Member
Catchwords: COSTS – no issue of principle
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| Administrative and Equal Opportunity Division
Decision of: R Dubler SC, Senior Member; S Goodman, Senior Member
Catchwords: APPEALS – procedural fairness – failure to take matters into account - leave to appeal
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Kearney, Senior Member
Catchwords: APPEAL - point not taken below — conduct of hearing – party bound by conduct of his or her case below unless exceptional circumstances established – exceptional circumstances not established
LEASES AND TENANCIES – residential tenancy – occupancy of unapproved “granny flat” – illegality – effect of illegality on tenancy agreement
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| Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J Lucy, Senior Member
Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – Tribunal not bound by the rules of evidence – Tribunal made order that Procedural Direction 3 apply to the proceedings – whether there was power to make order that Procedural Direction 3 apply to the proceedings when s 38(2) of the Civil and Administrative Tribunal Act 2013 provided that the Tribunal was not bound by the rules of evidence – held that there was power – although not bound by the rules of evidence the Tribunal had power to order that Procedural Direction 3 apply to the proceedings to ensure the Tribunal was provided with a satisfactory basis for the findings to be sought at the hearing and that expert opinions were soundly based, complete and reliable
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| Consumer and Commercial Division - Consumer Claim
Decision of: Cowdroy ADCJ, Principal Member; P Molony, Senior Member
Catchwords: APPEALS — insurance — claim by policyholder under travel insurance policy — whether policyholder complied with conditions of policy to receive benefit for extra cost of accommodation and lump sum benefit for permanent disability – no evidence of additional costs incurred — no evidence of permanent disability
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; D Robertson, Senior Member
Catchwords: LAND LAW- Strata title- reallocation of unit entitlements - unreasonable initial allocation - application by owners corporation - requirement for a certificate of valuation - hardship to lot owner - restitutio in integrum
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; R Dubler SC, Senior Member
Catchwords: APPEAL – appeal on questions of law from administratively reviewable decision
WORDS AND PHRASES – meaning of “general store” - meaning of “mixed business shop” in s 31 of Liquor Act 2007 (NSW)
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| | Edwards v Caravan & RV Central Pty Ltd [2021] NSWCATAP 171 Consumer and Commercial Division - Motor Vehicles
Decision of: Cowdroy ADCJ, Principal Member; A Lo Surdo SC, Senior Member
Catchwords: APPEALS — procedural fairness — failure to give reasons — adequacy of reasons
CONSUMER LAW — enforcement and remedies — action for damages — assessment of damages
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; G Sarginson, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether tenant is liable for damage to an appliance
APPEALS – Whether lave to appeal should be granted
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; A R Boxall, Senior Member
Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Whether residential tenancy agreement varied – Whether the landlord is estopped from claiming the full amount of rent for a period – Whether the landlord is entitled to claim the full amount of the rental bond
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| Consumer and Commercial Division - Commercial
Decision of: A Suthers, Principal Member; L Wilson, Senior Member
Catchwords: APPEAL – Dividing Fences Act 1991 (NSW) – renewal of proceedings – meaning of ‘fencing work’
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| Guardianship Division
Decision of: A D Suthers, Principal Member; J Moir, Senior Member (Legal); J V Catchwords: Le Breton, General Member (Community)
APPEAL – Guardianship – review of power of attorney – requirement to engage with the case put by parties
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| Consumer and Commercial Division - Commercial
Decision of: S Thode, Senior Member; A Boxall, Senior Member
Catchwords: APPEAL – Consumer Claim – appeal against findings made by Financial Ombudsman in Australian Financial Complaints Authority proceedings - whether jurisdiction to make orders - question of law - no jurisdiction
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| Consumer and Commercial Division - Commercial
Decision of: Cowdroy ADCJ, Principal Member; A Lo Surdo SC, Senior Member
Catchwords: APPEALS — leases and tenancies — retail leases — disclosure statements — whether lease invalid — whether amended lessor disclosure statements within lessor’s possession and knowledge prior to guarantee being executed — whether executed on assumption lessor accepted amendments — misleading and deceptive conduct — appeal dismissed
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| Consumer and Commercial Division - Social Housing
Decision of: Cowdroy ADCJ, Principal Member; A Boxall, Senior Member
Catchwords: APPEALS — leases and tenancies — Residential Tenancies Act 2010 (NSW) — non-payment of rent — orders terminating tenancy agreement and granting possession — whether denied procedural fairness — appeal dismissed
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; D Fairlie, Senior Member
Catchwords: CONSTITUTIONAL LAW (CTH) – Chapter III – where application under the Government Information (Public Access) Act 2009 (NSW) came before Civil and Administrative Tribunal of New South Wales ("NCAT") – where one party is State of NSW and the other party is a resident of another State where common ground that NCAT not a "court of a State" – whether NCAT exercised State judicial power in hearing and determining a dispute under the GIPA Act
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| | Bonner v Chief Commissioner of State Revenue [2021] NSWCATAP 180 Administrative and Equal Opportunity Division
Decision of: A Britton, Principal Member; Dr J Lucy, Senior Member
Catchwords: TAX AND DUTIES — payroll tax — liability — employment agents — employment agency contract — interpretation of Payroll Tax Act 2007 (NSW), s 37(1)
ADMINISTRATIVE LAW — administrative review of decision made by Chief Commissioner of State Revenue under Administrative Decisions Review Act 1997 (NSW) — decision subject of objection lodged by tax payer
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| Guardianship Division
Decision of: C Fougere, Acting Deputy President; J Moir, Senior Member; M Spencer, General Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – whether Tribunal prevented witnesses from taking part – allegation of bias – leave to appeal on other ground – disputed diagnosis of dementia – no question or principle or policy raised – no manifest error in the decision or decision making process – leave refused – appeal dismissed.
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| Consumer and Commercial Division - Home Building (CCD, HB)
Decision of: P H Molony, Senior Member
Catchwords: APPEAL - Costs – Rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014 - whether actual costs of rectification in homebuilding dispute should be taken into account when determining amount truly claimed or in dispute - whether costs should have been ordered where substantive proceedings settled – whether proceedings unreasonably conducted by one party – whether conduct of one party prior to the commencement of proceedings relevant to assessment of reasonable conduct – appeal allowed – no order as to costs.
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| | AWD Cavallo Investments Pty Ltd v Smokevitch [2021] NSWCATAP 183 Consumer and Commercial Division - Consumer Claim
Decision of: G K Burton SC, Senior Member; D Robertson, Senior Member
Catchwords: CONSUMER LAW – Unfair contract terms – Terms providing for cancellation of a contract for the supply of a kitchen – Whether unfair – Whether supplier had provided evidence of amounts to which the contract provided it was entitled
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| Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J Currie, Senior Member
Catchwords: APPEALS - procedure - time limits - extension of time – principles – no question of principle
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| Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; A Suthers, Principal Member
Catchwords: APPEAL – out of time – leave required – no grounds to allow
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| Consumer and Commercial Division - Tenancy
Decision of: R Titterton OAM, Senior Member; G Sarginson, Senior Member
Catchwords: APPEALS--- Leases and tenancies---Variation of contract---Rent reduction---Applicable principles
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| Consumer and Commercial Division - Commercial
Decision of: Cowdroy ADCJ, Principal Member; P H Molony, Senior Member
Catchwords: APPEALS — liquor licensing — lease of part of licensed premises — whether void due to failure to obtain approval of licensing authority — appeal dismissed
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| Consumer and Commercial Division - Strata
Decision of: P Durack SC, Senior Member; K Ransome, Senior Member
Catchwords: STRATA TITLES - claim for breach of duty to maintain and keep in good repair the common property - s 106(1) of the Strata Schemes Management Act - whether common property memorandum or bylaw exempted owners corporation from the claim - whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owners property - whether breach of s106(1) established -whether causation established
APPEAL – error of law - new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act
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| Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member
Catchwords: LEASES AND TENANCIES – default and termination – legislation protecting tenants – covid-19 pandemic protections – whether a tenant was an impacted tenant
APPEALS – procedural fairness – leave to appeal -refusal to admit evidence on appeal
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| Consumer and Commercial Division - Consumer Claim
Decision of: G K Burton SC, Senior Member; D Robertson, Senior Member
Catchwords: CONSUMER LAW - Consumer claim - alleged absence of procedural fairness by reason of non-receipt of notice of hearing
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| Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; C Mulvey, Senior Member
Catchwords: APPEAL – LAND LAW - Residential Tenancy – failure to consider relevant evidence – assessment of damages – no issue of principle
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| Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: BUILDING AND CONSTRUCTION - Home Building Act 1989 - statutory warranty - proceedings for breach – time in which proceedings to be commenced – calculation of time – applicability of s 36 of the Interpretation Act 1987
ADMINISTRATIVE LAW - particular administrative bodies - NSW Civil and Administrative Tribunal – discretionary decision on practice and procedure – failure to take into account relevant matters
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| Consumer and Commercial Division - Strata
Decision of: A Suthers, Principal Member; M Gracie SC, Senior Member
Catchwords: APPEAL — NCAT— costs - determination of a separate interlocutory question by Tribunal sought by appellants and opposed by respondent - appellants unsuccessful before Tribunal - appellants unsuccessful on appeal - finding of special circumstances - respondent not seeking an order for his costs - respondent seeking an order for costs requiring individual appellants to pay their own costs - respondent seeking an order for costs to require the individual appellants to pay the cost of the owners corporation as fourth appellant - no order as to costs of the appeal - no change to the Tribunal's order reserving costs of the interlocutory hearing
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| Consumer and Commercial Division - Consumer Claim
Decision of: A Suthers, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEALS — whether Tribunal erred by failing to consider argument
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| Consumer and Commercial Division - Residential Communities
Decision of: A Suthers, Principal Member; G K Burton SC, Senior Member
Catchwords: RESIDENTIAL AND HOLIDAY PARKS – permitted increase in site fees
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; S Goodman SC, Senior Member
Catchwords: LEASES AND TENANCIES – obligation to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted as existed at the commencement of the tenancy - obligation to leave the residential premises in a reasonable state of cleanliness - damage to premises – lack of evidence of cause of damage – overlooking of evidence as to cleanliness – no question of principle
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; G Sarginson, Senior Member
Catchwords: APPEALS — leases and tenancies — Residential Tenancies Act 2010 (NSW) — variation of contract — whether agreement to reduce rent — no error of law established — no grounds for leave to appeal established
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| Consumer and Commercial Division - Social Housing
Decision of: Cole DCJ, Deputy President; D Fairlie, Senior Member
Catchwords: APPEALS – Procedural fairness – Hearing rule
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| Consumer and Commercial Division - Consumer Claim
Decision of: Cowdroy ADCJ, Principal Member; D Robertson, Senior Member
Catchwords: CONSUMER LAW — consumer guarantees — supply of services — when cause of action arises
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| Guardianship Division
Decision of: R Booby, Senior Member; A Boxall, Senior Member; M Bolt, General Member
Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – reasonable opportunity to respond to 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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