NCAT Appeal Panel Decisions Digest Issue 6 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 June 2024: |
The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126: An Appeal Panel allowed an appeal and set aside orders made at first instance in respect of a decision which had extended the time for a lot owner to bring a claim under s 106(5) of the Strata Schemes Management Act 2015 (NSW) (SSMA) outside the two-year limitation period set out in s 106(6) of the SSMA. The Appeal Panel found that NCAT at first instance had wrongly interpreted s 41 of the NCAT Act, which allows NCAT to extend the time for the doing of anything under any legislation in respect of which NCAT has jurisdiction. Section 41 should not be read as an overriding provision to legislation which confers jurisdiction on NCAT and specifically sets out a limitation period.
|
|
YHY v YHZ [2024] NSWCATAP 117: An Appeal Panel allowed an appeal from the Guardianship Division of NCAT which, because of an administrative error, had failed to consider documents lodged by a father in respect of a guardianship order in relation to his son. NCAT at first instance ordered that the mother be the sole guardian of the son. On appeal, the Appeal Panel held that the father had been denied procedural fairness because these documents were relevant to key issues to be determined meaning his case had not been fully heard or considered. The Appeal Panel was ultimately satisfied the denial of procedural fairness deprived the father of the realistic possibility of a different outcome.
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Can NCAT hear and determine an application brought by a lot owner for damages and breach of statutory duty under s 106(5) of the SSMA outside the two year time period imposed by s 106(6)?
The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 Consumer and Commercial Division S Westgarth, Deputy President; A Suthers, Principal Member
In sum: The right to bring an action under s 106(5) is available only if brought within the time period specified in s 106(6). Whilst s 41 of the NCAT Act provides that NCAT may extend the period of time for the “doing of anything under any legislation”, this is limited to legislation “in respect of which the Tribunal has jurisdiction”. NCAT’s jurisdiction here to deal with statutory causes of action arising under s 106(5) of the SSMA is limited to the period specified in s 106(6). Therefore, because NCAT’s jurisdiction is based upon a statutory cause of action limited to a period specified in that legislation, there is no jurisdiction in respect of which NCAT had the power to extend time.
Facts: The respondent (a lot owner in the strata scheme constituted by the appellant) sought orders in NCAT that the appellant pay for and repair her property, and an order for damages. The respondent had reported a water leak in her shower to a maintenance contact person for the appellant, who responded by stating that the tiles in the shower were not the original tiles, and that it was therefore not the appellant’s responsibility to repair the waterproofing. The respondent had also intended to rent out her second bedroom, but the water leak caused her to revoke the offer in February 2020. The respondent then moved out of her lot in May 2020. The respondent lodged an application in NCAT in April 2022. NCAT held the application had not been brought within time as prescribed under s 106(6) of the SSMA.
Section 106 sets out the duty of owners corporations to properly maintain and repair property, but under s 106(6), an owner may not bring an action under s 106 for breach of statutory duty more than two years after the owner first becomes aware of the loss. Section 41(1) of the NCAT Act provides that NCAT may “extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation”. Section 41(2) continues by stating: “Such an application may be made even though the relevant period of time has expired.”
NCAT at first instance extended the time for the respondent to bring the application, and made several orders including that the appellant pay damages to the respondent in the amount of $35,990. The appellant submitted on appeal that NCAT erred in law by holding that s 41 enabled it to extend the period under s 106(6) within which the respondent could bring her action for damages.
Held (allowing the appeal, and setting aside the order made at first instance that the appellant pay damages to the respondent): (i) An application brought outside the time required by s 106(6) must be dismissed. The Appeal Panel in Huan Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 wrongly held that where s 106(6) of the SSMA states that an owner “may not bring an action under this section for breach of statutory duty” more than two years after the owner becomes aware of the loss, the phrase “may not bring” refers to the doing of something within two years which, if not done (or if time were not extended) will prevent the owner seeking damages. The Appeal Panel here disagreed with this finding, instead following the approach of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 which concerned a similar phrase being that an application “may only be made” within 21 days. Following the High Court’s approach, the provisions of s 106(5) and (6) are to be read together, and the right to bring an action under s 106(5) is available only if brought within the time required by s 106(6). The phrase “may not bring” defines the scope of the cause of action and thus precludes NCAT from having jurisdiction to apply s 41 to the question of an extension of time (at [76]-[80], [83]). |
(ii) The Appeal Panel in Huan Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 did not consider the importance of s 35 of the NCAT Act. When having regard to other provisions of the NCAT Act, including s 35, the language used in s 41 does not conflict with the above interpretation of s 106(5) and (6). Both ss 35 and 41 can be found in Pt 4 of the NCAT Act, which is headed ‘Practice and Procedure’. Section 35 is the first provision in Pt 4 and provides that each of the provisions in Pt 4, including s 41, are subject to enabling legislation. Part 4 does not create or modify causes of action which give rise to NCAT having jurisdiction to determine disputes. Instead, NCAT’s jurisdiction arises out of enabling legislation, here being the SSMA. Section 41 provides that NCAT may extend the period of time for the “doing of anything under any legislation” but that is qualified to limit NCAT’s power to legislation “in respect of which the Tribunal has jurisdiction”. NCAT’s jurisdiction here stems from statutory causes of action arising under s 106(5) of the SSMA which are limited to the period specified in s 106(6). NCAT will not have jurisdiction in which a power to extend time exists where a statutory cause of action is limited to a period specified in that legislation (at [85]-[88]). |
(iii) This interpretation of s 106 is consistent with the Court of Appeal’s judgment in The Owners – Strata plan no 74232 v Tezel [2023] NSWCA 35. Mitchelmore JA stated that the statutory right to recovery under s 106(5) is “circumscribed, relevantly, by the requirement that the action must be brought within the period prescribed in s 106(6)”. Her Honour recognised that the period of two years is a “relatively short limitation period” but explained that this reflects the broader interests of lot owners constituting the owners corporation, in circumstances where the people having to make good the loss are also lot owners, and the passage of time may otherwise affect their ability, through the owners corporation, to recover that loss from other persons (at [91]-[93]). |
2. What evidence is required to establish legal professional privilege under the GIPA Act?
Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Administrative and Equal Opportunity Division Hennessy ADCJ, Deputy President; A Suthers, Principal Member
In sum: Section 105 of the GIPA Act places the onus on the agency to demonstrate that relevant communications are subject to legal professional privilege. In satisfying the elements in s 118 of the Evidence Act 1995 (NSW), an agency must establish that there exists a confidential communication between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client. In claims for privilege under the GIPA Act, the relevant documents must be properly described and the facts relied upon as giving rise to the privilege must be set out. The communications themselves may not be sufficient to discharge the onus of proving a claim of legal professional privilege.
Facts: Ms Styles (the respondent) applied to the Wollondilly Shire Council (the appellant) for access to certain information under the GIPA Act. The Council identified 11 emails between various Council officers as falling within the scope of Ms Styles’ request and disclosed these emails, some being disclosed in full and some with various parts redacted. The Council cited the reason for not disclosing certain information as either “legal profession privilege” or because there were public interest considerations against disclosure which outweighed the public interest considerations in favour of disclosure (see GIPA Act, s 13 and the Table to s 14).
NCAT at first instance found that the emails which the Council claimed legal professional privilege over did not contain legal advice. NCAT also found that the Council had not discharged its burden with respect to the existence of any public interest considerations against disclosure, the Council claiming the emails “speak for themselves”. NCAT reasoned that the difficulty the Council faced was that it failed to provide evidence in support of its submission that the information in issue contained confidential communications made for the dominant purpose of providing legal advice, despite the onus being placed on the Council to demonstrate the emails were subject to legal professional privilege. NCAT at first instance set aside the decision made by the Council, and the Council here seeks to appeal that decision.
Held (refusing leave to appeal on the merits; dismissing the appeal on questions of law): (i) NCAT below correctly stated the principle that s 105 of the GIPA Act places the onus on the agency to demonstrate that the emails are subject to legal professional privilege. This requires the Council to satisfy NCAT that each of the elements of s 118 of the Evidence Act 1995 (NSW) are satisfied. The elements of a claim for legal professional privilege in this case are that there exists a confidential communication between a client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client. In claims for privilege under the GIPA Act, the documents for which privilege is claimed must be properly described and the facts relied upon as giving rise to the privilege must be set out (see Schreuder v Murray (No 2) [2009] WASCA 145 at [61]-[63]) (at [49]-[54]). The starting point when considering a claim for legal professional privilege is the nature of the duties of an in-house lawyer (AWB Ltd v Cole (No 5) (2006) FCA 1234) (at [56]). |
(ii) NCAT’s findings at first instance in relation to whether the emails were the subject of legal professional privilege were open to it on the facts. For example, where NCAT found that an email containing a comment from General Counsel did not contain legal advice, without any evidence to the contrary, this is a finding of fact that was open to it. Additionally, NCAT had no evidence before it that a person signing an email as ‘General Counsel’ was a lawyer or that the General Counsel’s role was to provide independent legal advice (at [57]-[60]). |
(iii) In relation to NCAT’s finding that there was insufficient evidence to make out any of the claims that there were public interest considerations against disclosure, the Appeal Panel found again that NCAT had not gone about the fact-finding process in an unorthodox way. NCAT had not decided that without evidence the Council’s claim would inevitably fail. Rather, the absence of any other evidence or submissions left NCAT at first instance unpersuaded after reading the relevant emails. As with legal professional privilege, the party claiming that there is an overriding public interest against disclosure has the onus of proving that claim (at [65], [69]-[70]). |
3. In what circumstances will administrative error amount to a breach of procedural fairness such that an appeal should be allowed?
YHY v YHZ [2024] NSWCATAP 117 Guardianship Division Armstrong J, President; A Britton, Deputy President; J Le Breton, General Member
In sum: A breach of procedural fairness will constitute jurisdictional error, such that an appeal would be allowed, where the error is material. This materiality threshold does not require a party to demonstrate that the procedural unfairness could “realistically” have affected the outcome of the case. Rather, it is enough that NCAT be satisfied the denial of procedural fairness deprived the party of the realistic possibility of a different outcome.
Facts: The Guardianship Division of NCAT made a guardianship order appointing both the father (the appellant, YHY) and the mother (the second respondent) as joint guardians of their son, YHZ, in relation to decisions to be made about “restrictive practices (chemical restraint)”. The mother applied to NCAT for a review of the existing guardianship order, seeking to be appointed as YHZ’s sole guardian. As a result of administrative error on the part of NCAT, several documents lodged by the father had not been included in the material before the NCAT Member at first instance, including submissions, copies of court orders and copies of the son’s medical records. However, the medical records were otherwise attached to a statement prepared by the mother. NCAT then appointed the mother as sole guardian of YHZ. The father appealed that decision contending that he had been denied procedural fairness because documents he had lodged in support of his case were not given to the Member such that his case had not been fully heard or considered.
Held (allowing the appeal, remitting the application for review of the guardianship order to a differently constituted Tribunal): (i) A jurisdictional error by a tribunal may arise on the breach of a condition of making the decision, including where the tribunal fails to observe a requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [3]. Relevantly, a breach of procedural fairness will constitute jurisdictional error, if the error is material to the tribunal’s decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (at [24]). |
(ii) Whether a failure by NCAT to have regard to material lodged by a party amounts to a denial of procedural fairness will depend on the facts of a particular case. As a starting point, it will be necessary to consider whether the material NCAT failed to consider contained information relevant to an issue that NCAT was required to consider in the proceedings. In addition, it will be necessary to consider whether that material was otherwise available to NCAT, as was the case with the son’s medical records, which were attached to a statement prepared by the mother. A further consideration may be whether the party that lodged the material NCAT failed to consider had nonetheless addressed that material in oral evidence or submissions. These considerations are not exhaustive (at [45]). |
(iii) From the Appeal Panel’s perusal of the missing documents and given that the mother and father disagreed about the significance of the information contained in the missing documents, the Appeal Panel found that it cannot be said that the material had no relevance to the issues for determination which included whether the father was a suitable person to act as guardian for the son (see Guardianship Act, s 17(1)(c)). As a result of the Registry failing to follow its usual procedures, NCAT failed to take “reasonably practicable” measures to ensure the father had a reasonable opportunity to be heard or otherwise have his submissions considered, as required by s 38(5)(c) of the NCAT Act (at [46]-[48]). |
(iv) The father is not required to demonstrate that the procedural unfairness could “realistically” have affected the outcome and it is not for the Appeal Panel to speculate on what the outcome would have been had the error not occurred. It is enough that the Appeal Panel be satisfied that the denial of procedural fairness deprived the father of the realistic possibility of a different outcome (Nathanson at [33]) (at [50]). The Appeal Panel here was satisfied that there was a realistic possibility of a different result, had NCAT complied with s 38(5) of the NCAT Act and therefore fully heard or otherwise considered the father’s case. |
|
|
Sultan v The Owners – Strata Plan no 54721 [2024] NSWCATAP 102 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Robertson, Senior Member Catchwords: APPEAL - expert witness not available for cross examination despite a direction requiring attendance for cross examination - influence of that witness’ reports in considering what weight to be given to the opposing expert witness’ report - denial of procedural fairness - order for remittal - whether order for payment of money should be set aside - no question of law and no basis to grant leave to appeal |
YGM v YGN (No 2) [2024] NSWCATAP 103 Guardianship Division Decision of: A Britton, Deputy President; J T Kearney, Senior Member; Dr M Spencer, General Member Catchwords: COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether “special circumstances” warrant an award of costs |
Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; A Suthers, Principal Member Catchwords: ADMINISTRATIVE LAW — whether evidence, other than the documents themselves, is required to establish legal professional privilege under the Government Information (Public Access) Act 2009 (NSW) — alleged inadequacy of reasons as a question of law |
Hiperia Holdings Pty Limited v Sghabi;; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 105 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; D Charles, Senior Member Catchwords: HOME BUILDING – successor in title engaged contractor to complete residential building work of another builder – no liability for contractor where no inference drawn on available evidence that contractor had installed defective windows – no breach of statutory warranty where consequential loss arising from water penetration not caused by contractor’s work – contingency provision allowable in building defects claim. APPEAL –Error on a question of law in relation to some findings of defective work – inadequacy of reasons – substituted findings of Appeal Panel. |
|
|
Li v Harrap [2024] NSWCATAP 108 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: LEASES and TENANCIES-residential tenancy-landlord’s breach of repair obligations-approach to the question of the quantum of compensation-notional rent reduction for discomfort and inconvenience concerning safety issue with backyard and pool-global amount for such loss in relation to other repair items. APPEALS-alleged bias-alleged procedural unfairness due to absence of documentary material from the appellant-no procedural unfairness because appellant had reasonable opportunity to present documentary evidence-adequacy of reasons concerning quantum of compensation-basis for sum awarded not explained-reassessment of quantum of compensation by the Appeal Panel. |
New South Wales Self Insurance Corporation v Kavanagh [2024] NSWCATAP 109 Consumer and Commercial Division - Home Building Decision of: Dr R Dubler SC, Senior Member; G Ellis SC, Senior Member Catchwords: HOME BUILDING APPLICATION – building claim – appeal against decision of insurer under building cover contract – whether policy provision excludes cover – successor in title – whether successor in title has an interest in the work – non-completion of work by builder |
Levy v Mercedes-Benz Australia/Pacific Pty Ltd [2024] NSWCATAP 110 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; P H Molony, Senior Member Catchwords: CONTRACT LAW – collateral contract – meaning of manufacturer’s warranty – meaning of defect – whether defect includes a defect in relation to goods being of acceptable quality under the Australian Consumer Law – onus of proof to enforce the warranty CONSUMER LAW – Australian Consumer Law – liability of manufacturer under s 54 – Guarantee as to acceptable quality – s 59 – manufacturers liability – powers of the Tribunal to order a manufacturer to repair or replace goods. |
Chandar v Gupta [2024] NSWCATAP 111 Consumer and Commercial Division Decision of: K Rosser, Principal Member; S De Jersey, Senior Member Catchwords: Appeal - Leases and Tenancies - residential tenancy agreement - compensation for tenants’ breach |
Craig v Shallita [2024] NSWCATAP 112 Consumer and Commercial Division - Residential Tenancy Decision of: G Burton SC, Senior Member; G Ellis SC, Senior Member Catchwords: LANDLORD and TENANT - RESIDENTIAL TENANCY – no grounds termination – alleged retaliatory eviction – lack of utility with tenants’ vacation – water usage charges alleged breach - Residential Tenancies Act 2010 (NSW) ss 33, 85, 115 |
Raysons Constructions Pty Ltd v The Owners Strata Plan No 87003 [2024] NSWCATAP 113 Consumer and Commercial Division - Home Building Decision of: S Thode, Principal Member; D Fairlie, Senior Member Catchwords: APPEALS- BUILDING AND CONSTRUCTION – statutory warranties expired – s18E(1)(e) not enlivened – owners corporation became aware of the defects in 2014 – proceedings commenced on 29 November 2020 - limitation period expired - whether jurisdiction to hear and determine the issues between the parties – mixed question of fact and law - 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 |
|
Lucas & Co Byron Pty Ltd v Morrison [2024] NSWCATAP 115 Consumer and Commercial Division - General Decision of: P Durack SC, Senior Member; D Robertson, Senior Member Catchwords: CONSUMER LAW - contract for holiday accommodation - contract with trustee company-variation of terms - agreed termination - whether price paid refundable - no basis for claim against director and shareholder of trustee company. APPEALS - new evidence - appellant not able to rely upon document with alleged applicable terms of contract not provided to the Tribunal at first instance - whether Tribunal misconstrued the contractual terms - no appealable error shown. |
YHY v YHZ [2024] NSWCATAP 117 Guardianship Division Decision of: Armstrong J, President; A Britton, Deputy President; J Le Breton, General Member Catchwords: APPEALS – time extended to file notice of appeal – procedural unfairness established – realistic possibility of a different outcome – appeal allowed GUARDIANSHIP – review of guardianship order – variation of guardianship order PROCEDURAL FAIRNESS – some of party’s written material not before the Tribunal due to administrative error - procedural unfairness resulting from administrative error |
Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118 Consumer and Commercial Division - Strata Scheme Decision of: M Harrowell, Deputy President; G Sarginson, Senior Member Catchwords: DAMAGES – assessment under s 106(5) of the Strata Schemes Management Act 2015 (NSW) – loss of opportunity – required proof ADMINISTRATIVE LAW – challenge on basis of unreasonableness – when available |
Owners SP 54026 v Kastri Aev Pty Ltd [2024] NSWCATAP 119 Consumer and Commercial Division - Strata Scheme Decision of: G Burton SC, Senior Member; C Mulvey, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – strict duty of owners corporation to maintain and repair common property – lost rent claim arising from alleged breach of duty – limitation period in Strata Management Act 2015 (NSW) s 106(5) with (6) – nature of loss - extension of time under Civil and Administrative Tribunal Act 2013 (NSW) s 41 |
Dannoun v NSW Land and Housing Corporation [2024] NSWCATAP 120 Consumer and Commercial Division - Social Housing Decision of: D Ziegler, Senior Member; S de Jersey, Senior Member Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) - termination - where termination notice did not specify a termination date not earlier than 14 days after the day on which the notice was given - where consent orders made under s 87 of the Residential Tenancies Act - where consent orders not made in accordance with parties’ agreement - whether a failure to provide 14 days’ notice of termination can be cured under s 113 of the Residential Tenancies Act - whether landlord has recovered possession of the premises |
York & Edwards v The Owners – Strata Plan No 675 [2024] NSWCATAP 121 Consumer and Commercial Division - Strata Scheme Decision of: K Ransome, Principal Member; A Lo Surdo SC, Senior Member Catchwords: APPEAL – strata scheme – reallocation of unit entitlement – exercise of discretion to reallocate – relevant factors for consideration – duties of Tribunal towards unrepresented party – whether denial of procedural fairness - whether discretion miscarried |
Peppernell v McCrae (No. 2) [2024] NSWCATAP 122 Consumer and Commercial Division - Commercial Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member Catchwords: COSTS – application of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – no question of principle |
Fadel v Siotor [2024] NSWCATAP 123 Consumer and Commercial Division - Home Building Decision of: G Sarginson, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – Internal Appeal – jurisdiction – general jurisdiction – no jurisdiction to hear an internal appeal against a correction order made under s 50 of the Consumer Trader and Tenancy Tribunal Act 2009 (NSW) (Repealed) – no jurisdiction to hear an internal appeal against a decision made in the Consumer Trader and Tenancy Tribunal in 2012 – consideration of transitional provisions in Cl 9 and 10 of Sch 1 of the Civil and Administrative Tribunal Act 2013 (NSW) PRACTICE and PROCEDURE – extension of time – refused where no jurisdiction to hear internal appeals |
Stellino v Bunnings Group Limited [2024] NSWCATAP 124 Consumer and Commercial Division - General Decision of: K Ransome, Principal Member; D Ziegler, Senior Member Catchwords: APPEALS – decision against the weight of evidence. CONSUMER LAW – Consumer guarantees – guarantee as to acceptable quality. |
Samchris Pty Ltd v Keogh [2024] NSWCATAP 125 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; P H Molony, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law – No material error of law – Appeal dismissed 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 – Work order made against the builder |
The Owners - Strata Plan No 30691 v Pickard [2024] NSWCATAP 126 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; A Suthers, Principal Member Catchwords: APPEAL – Strata Schemes Management Act 2015 – s 106(5) claim for damages – claim brought outside period of two years provided for by s 106(6) – whether time can be extended under s 41 of the Civil and Administrative Tribunal Act – statutory interpretation – whether the Appeal Panel should follow an earlier decision of an Appeal Panel – doctrines of stare decisis and comity. |
FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; D Robertson, Senior Member Catchwords: APPEAL — Questions of law — Extension of time to appeal — Leave to appeal — "ancillary" and "interlocutory" decisions under s 4(1) of the NCAT Act — Dismissal of proceedings under s 55(1)(c) of the NCAT Act — Reinstatement of proceedings under s 55(2) of the NCAT Act — Failure to determine request for adjournment — Whether there was a breach of procedural fairness in determining the proceedings in the absence of the appellant — Adequacy of reasons under s 62 of the NCAT Act — Public interest considerations in favour of and against disclosure under sections 12 and 14 of the GIPA Act —Conditions on form of access under s 73(2) of the GIPA Act |
Sui v Jiang [2024] NSWCATAP 128 Consumer and Commercial Division - Strata Scheme Decision of: S Westgarth, Deputy President; P Durack SC, Senior Member Catchwords: PROPERTY LAW-strata titles dispute-noise issue arising from installation of new flooring in a strata scheme unit-whether owner of the unit was in breach of relevant by-laws-expert evidence as to noise measurements and applicable noise rating-Tribunal found breach of relevant by-law in existence when new flooring installed and breach of amended by-law after the new flooring had been installed. APPEALS-whether appeal lodged out of time-whether time for lodging the appeal ran from the first decision making substantive orders-appeal lodged after lengthy delay from the first decision-the appeal lodged after the appellant obtained new expert evidence about the noise issue-merits of appeal considered on application to extend time-no substantial prospects of success on merits-application for extension of time refused. |
Dokas v Gallagher [2024] NSWCATAP 129 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; G Sarginson, Senior Member Catchwords: LANDLORD AND TENANT – application for termination for non-payment of rent – tenant failing to pay the amount of the rent increase – whether the notice of rent increase was valid – whether the Tribunal was in error in failing to deal with an excessive rent claim under s 44(1)(a) and (b) of the Residential Tenancies Act 2010 (NSW) – whether the premises were uninhabitable – whether the termination notice for non-payment of rent was retaliatory PRACTICE AND PROCEDURE – whether time should be extended to lodge the notice of appeal – whether leave to appeal should be granted in circumstances where Tribunal may have failed to exercise jurisdiction– whether the Tribunal failed to exercise jurisdiction – requirements to prove such a failure |
|
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. |
