NCAT Appeal Panel Decisions Digest Issue 6 of 2023 | 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 2023:
Noori Homes Pty Ltd v Patel [2023] NSWCATAP 149: An Appeal Panel held that there is no evidentiary onus on an owner who seeks a money order under s 48O(1)(a) of the Home Building Act 1989 (NSW) (HBA), rather than a work order under s 48O(1)(c)(i), to adduce some evidence that would rebut s 48MA of the HBA. Section 48MA of the HBA establishes the preferred outcome but does not amount to a presumption that must be rebutted before a money order can be made.
Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168: An Appeal Panel allowed an appeal and remitted the matter for reconsideration where the Tribunal had erred in its construction of s 50(1)(c) of the Anti-Discrimination Act 1977 (NSW) (ADA). Properly construed, a person claiming to be victimised is not required to prove on the balance of probabilities that the alleged discrimination occurred, only to establish the fact that an allegation that amounts to contravention of the ADA was made (along with the other elements of the provision).
Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171: An Appeal Panel held that it could not grant a licence or an extended trading authorisation to a new licensee in an appeal from an administrative review application by the former licensee. The Appeal Panel’s power under s 81(1) of the Civil and Administrative Tribunal Act 2013 (NSW) to make such orders as it considers appropriate does not go beyond the powers of the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW), which, in light of the terms of the enabling legislation, did not extend to orders relating to the new licensee.
Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173: An Appeal Panel found that it was not inconsistent to make orders under both s 59 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), being directed to different purposes. It often (but not necessarily) logically follows that an order will be made under s 64 of the NCAT Act where an order has been made under s 49(2) of the ADR Act for the hearing of an application for an order under s 59 of the ADR Act. Section 59 of the ADR Act provides a legislative basis for any denial of procedural fairness.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Does an owner who seeks a money order under s 48O(1)(a) of the Home Building Act 1989 (NSW) (HBA), rather than a work order under s 48O(1)(c)(i), have an evidentiary onus to adduce some evidence that a work order should not be made?
Noori Homes Pty Ltd v Patel [2023] NSWCATAP 149 Consumer and Commercial Division – Home Building G Blake AM SC, Senior Member; G Burton SC, Senior Member
In sum: There is no evidentiary onus on an owner who seeks a money order under s 48O(1)(a) of the HBA rather than a work order under s 48O(1)(c)(i). In the exercise of its discretion, the Tribunal’s consideration is unconfined, although it must have regard to the preferred outcome in s 48MA of the HBA. That preferred outcome does not amount to a presumption that must be rebutted before a money order can be made.
Facts: In January 2019, the appellant (builder) and respondent (owner) entered into a contract for construction of a home. The parties disputed the quality of the work: the owner commenced proceedings against the builder claiming $250,000 for breach of statutory warranty regarding incomplete work, defective work and financial loss; the builder commenced proceedings against the owner claiming $30,000 for unpaid work, damages for delay and an order that it did not have to pay $250,000 to the owners. The Tribunal dismissed the builder’s claim and ordered the builder to pay the owner $120,088.45. The builder appealed.
Held (dismissing the appeal): (i) The Appeal Panel considered it well-established that the principle that a work order is the preferred outcome (in s 48MA of the HBA) is a mandatory relevant consideration to the Tribunal’s exercise of discretion to make a money order under s 48O(1)(a) of the HBA, rather than a work order under s 48O(1)(c)(i). It was unnecessary to turn to extrinsic material to ascertain the meaning of s 48MA of the HBA – its meaning is clear. Section 48MA does not amount to a presumption that must be rebutted before a money order can be made. Such a construction would be contrary to the decisions of Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 at [43] and Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 at [17]. In so deciding, the Appeal Panel explicitly rejected the Appeal Panel in Leung v Alexakis [2018] NSWCATAP 11 at [140] (at [52], [53], [81]).
(ii) The decision to make a money order instead of a work order does not depend on the adducing of evidence by the owner. In any event, the Tribunal’s decision to make the money order was not against the weight of the evidence – it cannot be said that a reasonable Tribunal member could not have reached the Tribunal’s decision. The Appeal Panel held that the factors the Tribunal may have regard to when considering whether to make a money order under rather than a work order under are unconfined. The only matter that the Tribunal must have regard to is the preferred outcome as set out in s 48MA of the HBA. The Tribunal below did not err in having regard to the builder’s failure to adduce evidence as to how the rectification work would be attended to, should a work order be made (at [53]-[54], [80], [82], [83]). | 2. Does the correct approach to determining a claim for victimisation under s 50 of the Anti-Discrimination Act 1977 (NSW) (ADA) require the Tribunal to be satisfied that the alleged acts of discrimination occurred?
Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168 Administrative and Equal Opportunity Division Cole DCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: The proper construction of s 50(1)(c) of the ADA only requires the person claiming to be victimised to prove the fact that an allegation that would amount to conduct in breach of the ADA was made (along with the other elements of the provision). There is no requirement to establish that the alleged contravening acts occurred.
Facts: The appellant was a member of the NSW Chinese Tennis Association (CTA) and the Meadowbank Tennis Club (MTC), which used facilities leased and operated by the first respondent (Voyager). The appellant alleged that he had been victimised as a result of allegations made by him that “some members of the CTA were excluding and intimidating older-feeble-infirm members of the MTC”. The victimisation was said to involve attempts to prevent the appellant from having access to the MTC, refusal to accept his payment and refusal of access to the court. The appellant brought a claim for victimisation under s 50 of the ADA, which was dismissed by the Tribunal on the basis that it was not satisfied on the balance of probabilities that the alleged acts of discrimination had occurred.
Held (allowing the appeal in respect of the 2nd-4th respondents): (i) The appeal raised a question of law as to the elements required to be proved in a claim for victimisation; the appellant argued that the proper construction of s 50(1)(c) of the ADA only required the victimised person to prove they had made an allegation of discrimination, not the actual discrimination. The Appeal Panel found that a person claiming to be victimised need only establish the fact of making an allegation that would amount to contravention of the ADA (along with the other elements of the provision), and that person was not required to establish that the allegation was, on the balance of probabilities, true. As a result, the Tribunal had erred in its construction of the provision (at [25]-[26], [31]-[32]). (ii) The Appeal Panel allowed the appeal and remitted it for reconsideration on the existing evidence in respect of the second, third and fourth respondents, but dismissed the appeal against Voyager as no prima facie case of detriment had been made out (at [34]-[35], [41]). | 3. Are NCAT administrative review decisions pursuant to s 49(2) of the Liquor Act 2007 (NSW) (LA) decisions in rem, such that NCAT could grant a licence or an extended trading authorisation (ETA) to a different licensee?
Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171 Administrative and Equal Opportunity Division P Durack SC, Senior Member; J Lucy, Senior Member
In sum: An NCAT decision regarding a grant of an ETA may be considered an in rem judgment as to the rights of the licensee that is the applicant for administrative review, but the terms of s 49(2) of the LA do not extend to granting a licence or ETA to a new licensee. Similarly, the Appeal Panel’s power under s 81(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in an appeal from administrative review proceedings does not go beyond those of the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
Facts: The respondent (Authority) refused to grant an extended trading authorisation (ETA) to the appellant (Taphouse), which was then the licensee of a hotel. Taphouse applied to the Tribunal for administrative review of the refusal, which affirmed the Authority’s decision. The appellant lodged an appeal. Prior to the hearing of the appeal, the appellant completed its sale of the hotel business and ceased to be the licensee. As a result, the Authority raised as a threshold matter that the appeal was without utility and incompetent – a moot appeal.
Held (dismissing the appeal): (i) Taphouse argued that it had a right to appeal, and it would be an “impermissible gloss on the statute” to restrict the exercise of its appeal right. The Appeal Panel rejected this submission – it failed to account for the law on moot appeals and NCAT’s power to dismiss under s 55(1)(b) of the NCAT Act. The Appeal Panel summarised the authorities on moot appeals and found that in the circumstances, a determination of the merits of the appeal would not resolve any current legal controversy between the parties, nor any future controversy between the respondent and the new licensee. The appeal would have no practical consequences for either party. The arguments raised by Taphouse regarding the new licensee did not grapple with the notion that the appeal will have no practical outcome for the parties to the appeal and that Taphouse now only had an academic interest in the controversies raised (at [5], [6], [12]-[15], [16], [72]).
(ii) Taphouse also sought to overcome the threshold issue with an argument that the grant of an ETA was in rem in nature such that it ran with the premises until revoked and so would be binding on the new licensee. Thus, it was said that determination of the appeal would have utility, where the new licensee could be joined as a party. A significant barrier to this argument was s 49(2) of the LA, by which the Authority (and the Tribunal or Appeal Panel standing in its shoes) may only grant an ETA to the licensee who applies for the grant (at [17], [21]).
(iii) The Appeal Panel accepted that a decision of NCAT on the merits of Taphouse’s application for an ETA could be regarded as a judgment in rem concerning the status of Taphouse’s licence, but it was not clear how that could be relevant in circumstances where Taphouse no longer held the licence. There had not yet been investigation, consideration and decision by the Authority regarding the new licensee and consequently no administrative review right had arisen with respect to the new licensee. On the proper construction of s 49(2) of the LA, an ETA is not granted irrespective of the licensee; any licence and ETA do not run with the premises. The Authority’s decision was a refusal to Taphouse and so any relief must be in respect of Taphouse (at [24], [26]-[27], [40]-[42], [52], [54]).
(iv) The Appeal Panel rejected a further argument from Taphouse that s 81(1) of the NCAT Act, which enables the Appeal Panel to make “such orders as it considers appropriate in light of its decision”, would make it open to the Appeal Panel to order the ETA be granted to the new licensee. The Appeal Panel held that the power in s 81(1) in administrative review proceedings could not be more extensive than the power of the Tribunal pursuant to s 63 of the ADR Act. In light of its interpretation of s 49(2) of the LA, the Appeal Panel’s powers under s 81(1) of the NCAT Act would not extend to granting the ETA to the new licensee (at [59], [60], [61]). | 4. Do s 59 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) operate as distinct alternatives?
Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173 Occupational Division I R Coleman SC ADCJ, Principal Member; D Robertson, Senior Member
In sum: Orders under s 59 of the ADR Act and s 64(1)(d) of the NCAT Act are directed to different purposes. Where an order is made under s 49(2) of the NCAT Act for a hearing of an application for an order under s 59, it often – but not necessarily – follows that an order under s 64 of the NCAT Act will be made. It was logical for the orders under s 64 of the NCAT Act to be made to protect against any compromise to the confidentiality of the confidential material produced for the application under s 59 of the ADR Act, which would potentially defeat the ultimate order under s 59 of the ADR Act.
Facts: In July 2022, the respondent (Commissioner) revoked the first appellant’s (Magdy) Operator Security Licence and the second appellant’s (Company) Master Security Licence. The decisions were affirmed on internal review; the appellants applied to the Tribunal for administrative review. The Commissioner lodged a bundle of documents pursuant to s 58 of the ADR Act and applied for an order under s 59(1) of the ADR Act that copies of certain confidential materials were not required to be lodged. The Commissioner also sought orders under ss 49 and 64 of the NCAT Act. On 26 October 2022, the Tribunal made the orders sought by the Commissioner. The appellants sought leave to appeal from this interlocutory decision.
Held (refusing leave to appeal; dismissing the appeal): (i) The appellants sought to argue that s 59 of the ADR Act and s 64(1)(d) of the NCAT Act operate “differently, and as alternatives”, such that orders under both provisions could not be made. It was submitted that the Tribunal had made an order under s 59 of the ADR Act, the effect of which was that the Commissioner was not required to lodge the confidential material, but also made an order under s 64(1)(d) of the NCAT Act with respect to that material, with the effect that the appellants were deprived from making meaningful submissions on the information before the Tribunal (at [45]-[47], [52]).
(ii) The Appeal Panel held that there was no inconsistency in making the two challenged orders – they were directed to different ends. The order pursuant to s 59 of the ADR Act excused the Commissioner from producing the confidential material to the Tribunal; the orders under s 64 of the NCAT Act had no work to do regarding that material. However, there remained confidential material produced to the Tribunal which needed to remain confidential. Considering the confidential nature of the material before it, the Tribunal did not need to be satisfied of “special” or any other circumstances to make an order under s 49(2) of the NCAT Act. The risk of the loss or compromise of the confidentiality of the material justified the making of the order. Whilst not necessarily so, the Appeal Panel considered that the making of the order under s 64 of the NCAT Act logically followed from the order under s 49(2). The Appeal Panel also noted that it would be difficult to conceive of circumstances where an order under s 49(2) of the NCAT Act would be erroneous in the context of a hearing regarding s 59 of the ADR Act (at [79]-[81], [139]).
(iii) The appellants submitted that the orders made by the Tribunal resulted in a denial of procedural fairness, in circumstances where they were “left entirely in the dark as to the nature of the allegations levelled against them”. The Appeal Panel rejected this submission – s 59 of the ADR Act, where enlivened, provides a legislative basis for such a denial of procedural fairness. It is not in doubt that s 59 of the ADR Act substantially derogates from the principles of procedural fairness and open justice, but the validity of the provision was not in issue in the appeal. Disclosure of the confidential material would defeat the purpose of an order under s 59 of the ADR Act. The appellants were unable to identify how the Tribunal could have set out its reasoning in terms in a manner that would not defeat the orders made (at [68], [95], [96], [122], [124]). | | | Noori Homes Pty Ltd v Patel [2023] NSWCATAP 149 Consumer and Commercial Division Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — From exercise of discretion — Acting on the wrong principle APPEALS — From exercise of discretion — Regard to irrelevant considerations APPEALS — Leave to appeal — Principles governing – leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – where the builder breached statutory warranties – money order made against the builder | Hughes v Commissioner of Police, NSW Police Force [2023] NSWCATAP 150 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW – Firearms Act 1996 (NSW) – Revocation of firearms licence – Safe storage requirements – Condition of licence that licensee required to permit inspection of storage facilities – Condition not complied with where facilities are not reasonably accessible and inspection is not reasonably practicable – Not sufficient that access could have been provided by removing roof if notice had been given – Firearms amnesty – Registration of firearm during amnesty does not preclude any subsequent consideration of the fact that the licensee had previously been in possession of an unregistered firearm. | | Abdelmessiah v Lifestyle Marketing Pty Limited [2023] NSWCATAP 152 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; M Deane, Senior Member Catchwords: COSTS – applicant/appellant ordered to pay respondents costs - consumer law claim for misleading and deceptive conduct – whether Rule 38 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) applied – claim in excess of $30,000 until part way through hearing of the merits – whether respondents or applicant was the successful party – whether applicant achieved a degree of success – whether exercise of discretion as to costs miscarried – re-exercise of discretion by the Appeal Panel – order as to costs modified. | BlueSky Property Builders Australia Pty Ltd v Dey [2023] NSWCATAP 153 Consumer and Commercial Division Decision of: D Robertson, Senior Member; K Ransome, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranty – Defences – Section 18F – Whether plans and specifications constitute an “instruction given in writing” for the purposes of s 18F. BUILDING AND CONSTRUCTION – Defective building work – Assessment of damages – Consequential loss – Cost of alternative accommodation while rectification work being undertaken – First limb in Hadley v Baxendale – Loss flowing naturally from the builder’s breach of statutory warranty. BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Section 48MA preferred outcome – Not inappropriate to take into account the builder’s failure to follow an instruction from the private certifier. | Zhang v Pollasky [2023] NSWCATAP 154 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; G Blake AM SC, Senior Member Catchwords: APPEALS — Leave to appeal — Principles governing – leave to appeal refused LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) - Quiet enjoyment – Compensation for breach by the landlord | Mayhew v Gittany [2023] NSWCATAP 156 Consumer and Commercial Division Decision of: M A Harrowell, Deputy President; G Blake AM SC, Senior Member Catchwords: CONTRACT LAW – obligations of supplier where advice concerning construction method and location of structure not accepted CONSUMER LAW - obligations to provide services with due care and skill and to ensure services are fit for purpose or of a quality, state or condition that might reasonably be expected to achieve a required result - consumer not relying on skill or judgement of the supplier | Hargans v SNB Plus 3 Pty Ltd [2023] NSWCATAP 157 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; JS Currie, Senior Member Catchwords: APPEAL- costs at first instance- no special circumstances-experts report- submissions raised on appeal not raised at first instance. | Middleton v Wrona [2023] NSWCATAP 158 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Lump sum contract – additional work – payment of progress payments – effect of progress payments – overpayment of contract sum – entitlement to recover overpayment – breach of contract – obligation to account RESTITUTION – entitlement to recovery – money had and received – need to prove “qualifying or vitiating” factor – onus of proof BUILDING AND CONSTRUCTION – Order to demolish and rebuild garage – competing evidence – challenge to Tribunal’s evaluation of evidence | BSA Ltd v Chief Commissioner of State Revenue [2023] NSWCATAP 159 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – Taxes and duties – Payroll tax - Assessment – Exemption – Whether contracts are “relevant contracts” - Whether supply of services ancillary to supply or conveyance of goods | Secretary, Department of Education v FSO (obo FSN) [2023] NSWCATAP 160 Administrative and Equal Opportunity Division Decision of: A Balla ADCJ, Principal Member; Dr Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW - discrimination – disability discrimination – indirect – condition or requirement – denying or limiting access to a benefit – subjecting to detriment – education | BNK Café Restaurant Pty Ltd v The Owners – Strata Plan No. 33676 [2023] NSWCATAP 161 Consumer and Commercial Division Decision of: S Thode, Principal Member; M Deane, Senior Member Catchwords: APPEALS - STRATA TITLE – by-laws – construction - terms of exclusive use by law - LAND LAW - alleged unreasonable refusal of consent by lot owners and owners corporation to proposed amendment – grounds of appeal not identified - no issue of principle | Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 Administrative and Equal Opportunity Division Decision of: K Ransome, Senior Member; M Deane, Senior Member Catchwords: APPEALS – administrative review – revocation of firearms licence– whether not in the public interest for applicant to hold a firearms licence – pro-forma mental health assessment | | | | | Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: Human rights – Victimisation – Whether the allegation of discrimination giving rise to the claim of victimisation needs to be established – Voluntary association | Ferntree Homes Pty Ltd v Bernleitner [2023] NSWCATAP 169 Consumer and Commercial Division Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEALS – Reasons – Adequacy – Leave to appeal - Whether the appellant had suffered a substantial miscarriage of justice | Intelligent Building Pty Ltd v Ibrahim [2023] NSWCATAP 170 Consumer and Commercial Division Decision of: G Sarginson, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – error of law – adequacy of reasons – measure of damages for breach of contract – whether oral variation of contract enforceable – whether appeal should be remitted for hearing. CONTRACT – measure of damages for breach of home building contract – whether “overpayment” correct measure | Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171 Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; J Lucy, Senior Member Catchwords: APPEALS-moot appeals-appeal in administrative review proceedings-administrative review of Tribunal decision affirming a decision of the Liquor & Gaming Authority to refuse an application for an extended trading hours authorisation-change of hotel licensee subsequent to the Tribunal’s decision-interpretation of s 49 (2) of the Liquor Act concerning applications for an extended trading hours authorisation-whether the authorisation power applies to the hotel licensee from time to time or can only be granted to the applicant/licensee-whether the grant of a liquor licence and extended trading hours authorisation runs with the hotel premises-whether any utility in determining the merits of the appeal-whether discretion should be exercised to determine the appeal even though it has no practical consequences for the parties. | Scozza v JIH Building Design Pty Ltd [2023] NSWCATAP 172 Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; D Fairlie, Senior Member Catchwords: APPEAL – procedural fairness – requires transcript of proceedings to be assessed – adequacy of reasons – remitter to a differently-constituted Tribunal | Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173 Occupational Division Decision of: I R Coleman SC ADCJ, Principal Member; D Robertson, Senior Member Catchwords: APPEAL- whether leave should be granted to appeal against interlocutory orders made under s 59 of Administrative Decisions Review Act 1997, s 49 and s 64 of Civil and Administrative Tribunal Act in administrative review proceedings under Security Industry Act - whether leave to adduce new evidence should be granted | DSJ Carpentry & Construction Pty Ltd v Trajcevski [2023] NSWCATAP 174 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; P Molony, Senior Member Catchwords: CONTRACTS – Parties – name of company and licence number of individual on quotation - decision that both were parties to the contract affirmed APPEALS – Procedural fairness – failure to give reasons – adequacy of reasons APPEALS – Orders – Variation to remove potential ambiguity | | Moodini v Free [2023] NSWCATAP 176 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; C Mulvey, Senior Member Catchwords: APPEAL – No question of principle | Omary v Eid [2023] NSWCATAP 177 Consumer and Commercial Division Decision of: K Ransome, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – appeal from dismissal of set aside application – relevant principles – no error – appeal out of time | TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178
Consumer and Commercial Division Decision of: G Blake AM SC, Senior Member; L Wilson, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law - Allegations of constructive failure to exercise jurisdiction APPEALS — From exercise of discretion — Acting on the wrong principle APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – Where the builder breached statutory warranties – Money order made against the builder | Sethi v Cho [2023] NSWCATAP 179 Consumer and Commercial Division Decision of: D Robertson, Senior Member; G Burton SC, Senior Member Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) ss 85, 115 – no grounds termination – alleged retaliatory eviction – no error of law or fact | Khoury v Frasier [2023] NSWCATAP 180 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; C Mulvey, Senior Member Catchwords: APPEAL – No question 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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