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| | NCAT Appeal Panel Decisions Digest Issue 7 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 July 2021: - PlumbCorp Group Pty Ltd v Paras [2021] NSWCATAP 207 - In which the Appeal Panel refused leave to appeal and dismissed the appeal of the appellant, who sought to appeal from orders of the Tribunal that it refund the respondent for plumbing services it provided. The Appeal Panel found that it was open to the Tribunal to consider evidence from a second plumbing provider who had completed work for the respondent, despite the fact that it was not provided with, and did not agree to be bound by, the Experts’ Code of Conduct.
- Fletcher-Jones v Avant Garde Logistics Solutions Pty Ltd [2021] NSWCATAP 201 - In which the Appeal Panel dismissed the appeal of an appellant because she failed to comply with directions, and failed to demonstrate that there existed any probative evidence in support of her appeal. The Tribunal also had regard to the proportionately low amount of the money the subject of the dispute.
- Kazacos Investments Pty Ltd atf Kazacos Investments Trust v Maher [2021] NSWCATAP 219 - In which the Appeal Panel dismissed the appeal of a landlord who sought to overturn a decision of the Consumer and Commercial Division, which awarded the respondent tenant payments for a rent reduction and damages to property due to the presence of mould in the residential premises. The Appeal Panel discussed the requirements of a Tribunal’s reasons for decision.
- Bruce v Knight [2021] NSWCATAP 224 - In which the Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division which had made a common property rights by-law as sought by the respondents. In assessing whether the Owners Corporation had unreasonably refused to make the by-law, the Tribunal erred by limiting its assessment to the circumstances at the time of the decision of the Owners Corporation. The matter was remitted to the Tribunal.
- Commissioner of Police v Fakhouri [2021] NSWCATAP 226 - In which the Appeal Panel partly allowed the appeal of the appellant and remitted the matter for reconsideration by the Tribunal. The Tribunal’s condition on the respondent’s licence that, should he accumulate more than five driver demerit points before a certain date the Commissioner may summarily revoke the respondent’s licence, was beyond power.
- Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 - In which the Appeal Panel allowed the appeal of the appellant from an ancillary decision of the Tribunal. The Appeal Panel found that the Tribunal did not have jurisdiction to decide the matter because it concerned a requirement to undertake an assessment, and not the imposition of a condition on a licence, and was therefore not an administratively reviewable decision.
- DQV v University of New England [2021] NSWCATAP 208 - In which the Appeal Panel refused leave to appeal and dismissed the appeal of two appellants who alleged collection of their personal data by the respondent infringed the Privacy and Personal Information Protection Act 1998 (NSW). The Appeal Panel found that the Tribunal made an error of fact, but that the Tribunal’s ultimate finding was correct; consequently the Tribunal found that a grant of leave to appeal would serve no useful purpose and would not be consistent with NCAT’s guiding principle.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| PlumbCorp Group Pty Ltd v Paras [2021] NSWCATAP 207Consumer and Commercial Division - Home Building
S Westgarth, Deputy President; D Fairlie, Senior Member
In sum: The Appeal Panel refused leave to appeal and dismissed the appeal of the appellant, who sought to appeal from orders of the Tribunal that it refund the respondent for plumbing services it provided. The Appeal Panel found that it was open to the Tribunal to consider evidence from a second plumbing provider who had completed work for the respondent, despite the fact that it was not provided with, and did not agree to be bound by, the Experts’ Code of Conduct.
Facts: The appellant provided plumbing services to the respondent. The respondent paid two of the appellant’s invoices, but the issue was not resolved. The respondent refused a third invoice and hired a different service provider (Watertight) who charged a substantially lower amount. The respondent initiated proceedings in the Consumer and Commercial Division in order to recover the cost of the second invoice. In finding in the respondent’s favour, the Tribunal had regard to comments on the plumbing issue made by Watertight in its invoice. The appellant submitted that the Tribunal should not have had regard to this evidence because Watertight did not receive a copy of, or agree to be bound by, the terms of the Experts’ Code of Conduct ([1]-[7]).
Held (dismissing the appeal):
(i) The Tribunal is not bound by the rules of evidence, and there was no requirement for the Watertight invoice to be accompanied by an expert’s report complying with the Experts’ Code of Conduct. The Tribunal was correct in finding that the invoice was evidence of factual matters, and not opinion evidence ([11]).
(ii) Though there was one statement of opinion based on the author’s observations, there was no evidence to contradict this statement of opinion and the appellant did not seek to cross-examine Watertight. The Tribunal was entitled to infer that the evidence in the Watertight invoice was not disputed, and there was no error of law in the Tribunal’s finding that the invoice was persuasive ([11]-[12]).
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| Consumer and Commercial Division - Consumer Claim S Westgarth, Deputy President; A Suthers, Principal Member
In sum: The Appeal Panel dismissed the appeal of an appellant because she failed to comply with directions, and failed to demonstrate that there existed any probative evidence in support of her appeal. The Tribunal also had regard to the proportionately low amount of the money the subject of the dispute.
Facts: The appellant electronically transferred the respondent $596 in payment for removal services, which the respondent said was not received. The appellant made a second electronic transfer which was received, but the appellant claimed both payments were successful. The appellant was unsuccessful in bringing proceedings in the Consumer and Commercial Division against the respondent, as the Tribunal found the first payment was made to a bank account not belonging to the respondent. The appellant was granted an extension of time for filing submissions but failed to make submissions, and requested a further extension, to which the respondent objected ([2]-[4], [15]-[19]).
Held (dismissing the appeal):
(i) Whilst procedural directions are not to be used as instruments of oppression, and insistence on compliance should not deprive a party from a reasonable opportunity to present their case, there are other factors to be weighed. Firstly, compliance with the Tribunal’s directions and orders is mandatory: NCAT Act, s 36(3). Secondly, directions are made with a view to allowing the Tribunal to achieve the ultimate goal of resolving disputes in a way which is not only just, but also quick and cheap: NCAT Act, s 36(1) ([22]).
(ii) In dismissing the appeal, the Tribunal noted that despite three months elapsing since the first instance decision, the appellant failed to lodge any probative evidence in support of her appeal. Though the appellant applied for a summons to her bank seeking information regarding the payments from her account, this summons request made clear that the appellant does not have the necessary evidence to support her appeal. As there was no explanation why the appellant did not make use of the summons process at first instance, any evidence returned by the summons on appeal would not meet the terms of cl 12(c) of Sch 4 to the NCAT Act, because it was reasonably available at the time of the first instance proceedings ([23]-[24]).
(iii) Though there is no minimum monetary amount governing when leave to appeal should be granted, the quantum of any order is a relevant consideration due to the Tribunal’s duty to facilitate a resolution in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter, per s 38(4) of the NCAT Act. The amount in dispute, the appellant’s ongoing failure to comply with directions and the lack of any probative evidence in support of the appellant’s case, meant the Appeal Panel was not satisfied that the time to lodge material should be further extended, and the appeal was dismissed ([25]-[27], [29], [31]).
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| Consumer and Commercial Division - Tenancy
D Robertson, Senior Member; A Boxall, Senior Member
In sum: The Appeal Panel dismissed the appeal of a landlord who sought to overturn a decision of the Consumer and Commercial Division, which awarded the respondent tenant payments for a rent reduction and damages to property due to the presence of mould in the residential premises. The Appeal Panel discussed the requirements of a Tribunal’s reasons for decision.
Facts: The respondent was a tenant of the appellant landlord, and brought proceedings at the Tribunal claiming a reduction in rent and damages for damage to his possessions due to the presence of mould in the apartment. The Tribunal found in favour of the tenant and gave oral reasons for decision. The landlord appealed, but did not seek written reasons for the first instance decision. The landlord and tenant both put partial transcripts before the Appeal Panel. The landlord submitted that the Tribunal made an error of law in finding that the property was uninhabitable due to the mould, and that the finding that the landlord was responsible for the mould was not supported by adequate reasons ([1]-[5], [9], [11]-[15], [17], [24], [27]).
Held (dismissing the appeal):
(i) The Tribunal cited NSW Land and Housing Corporation v Orr [2021] NSWCA 231, and stated that the quality of a decision-maker’s reasons can vary immensely, depending upon a range of considerations including the experience and skill of a decision-maker, the complexity of the subject matter, the quality of the submissions, the availability of transcript, the urgency of the matter and the time the decision-maker has to compose his or her reasons. In appellate decisions, the function of the decision-maker is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. While transparency is important in decision-making, it is not cost free, and may involve different parameters of quality and quantity ([67]).
(ii) As noted in Orr, the quantity of reasons necessary for reasons to be adequate may vary depending on the nature of the decision maker (i.e. a court or tribunal) and the nature of the question being decided. In regard to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals may call for a more relaxed standard of review of reasons, and latitude for linguistic infelicities, than may be expected in an appellate court hearing an appeal from another court. The Court of Appeal set out at [77] in Orr some key principles for determining what constitutes adequate reasoning ([67]).
(iii) The reasons of the Tribunal below, given orally at the conclusion of the hearing and without formality, sufficiently exposed its reasoning. The fact that written reasons were not requested or provided must have substantial significance in any assessment of the oral reasons which were provided. Though written reasons may have clarified matters, the Tribunal could not alter the decision or the substance of its reasons as expressed orally. There is no reason in law or policy why a decision-maker who delivers a judgment orally should be strictly bound by the precise manner in which the reasons were expressed; when revising a transcript of reasons, they are entitled to alter the transcript so that it more clearly reflects what they meant to say ([28], [68]-[70]).
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| Consumer and Commercial Division - Strata
R C Titterton OAM, Senior Member; A Boxall, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division which had made a common property rights by-law as sought by the respondents. In assessing whether the Owners Corporation had unreasonably refused to make the by-law, the Tribunal erred by limiting its assessment to the circumstances at the time of the decision of the Owners Corporation. The matter was remitted to the Tribunal.
Facts: The respondents (the Knights) sought to create a common property rights by-law in relation to their strata scheme, granting exclusive use of part of the common property in order to carry out extensive renovations to their lot. On three occasions the by-law failed to meet the required special resolution in which no more than 25% of votes cast are against the decision. The appellant (Mr Bruce) opposed the resolution ([11]-[14]).
The Knights sought an order at the Tribunal under s 149 of the Strata Schemes Management Act 2015 (NSW) making the by-law. The Tribunal found the Owners Corporation (the second respondent) had unreasonably refused to make the by-law, pursuant to s 149, and made the order sought by the Knights. Mr Bruce appealed from this decision, and submitted the Tribunal had applied the law incorrectly by assessing the reasonableness of the decision to refuse the by-law at the time the decision was made ([15], [18]).
Held (allowing the appeal):
(i) The Tribunal erred by limiting its assessment to the circumstances at the time of the Owners Corporation’s decision, and thereby applying the wrong test The question of unreasonable refusal under s 149 is to be determined by having regard to the conduct of the Owners Corporation, and to the circumstances known prior to the Owners Corporation’s decision. The circumstances at the time are different to the material before the Owners Corporation, though subsequent evidence pertinent to the circumstances at the time is admissible; it would be nonsensical to assess reasonableness based on information that was before the Owners Corporation that was later revealed to be incorrect ([50], [56]).
(ii) By conflating “circumstances” and “reasons” in saying that the Owners Corporation’s reasons for refusal advanced before the Tribunal differed significantly to those recorded in meeting minutes where the by-law was refused, the Tribunal applied the wrong test. The starting point for assessing unreasonableness under s 149 is the circumstances, though the full assessment involves other considerations, including balancing the competing interests of the lot owners ([52], [57]).
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| Administrative and Equal Opportunity Division
A Britton, Principal Member; C Mulvey, Senior Member
In sum: The Appeal Panel partly allowed the appeal of the appellant and remitted the matter for reconsideration by the Tribunal. The Tribunal’s condition on the respondent’s licence that, should he accumulate more than five driver demerit points before a certain date the Commissioner may summarily revoke the respondent’s licence, was beyond power.
Facts: The appellant (the Commissioner) issued the respondent a security licence in 2015. The respondent was convicted in the Local Court for driving offences in 2019, and the Commissioner consequently revoked the respondent’s security licence. This was on the basis that the respondent was not a “fit and proper person” to hold a licence, pursuant to s 26(1A) and s 15 of the Security Industry Act 1997 (NSW) (SI Act), and that it was not in the public interest that the respondent hold a licence, pursuant to s 26(1)(d) of the SI Act. The Tribunal reviewed and affirmed this decision in 2019, but in 2021 the Tribunal granted the respondent a security licence on the condition that he not accumulate more than 5 driver demerit points before 31 December 2021. The Commissioner appealed on various grounds, including that he was not afforded procedural fairness, and the Tribunal’s decision was irrational, not based on logically probative evidence and beyond power ([1]-[4], [10], [13]).
Held (allowing the appeal in part and remitting the matter for rehearing):
(i) The Tribunal was not bound to make the binary choice between granting or refusing a licence, as proposed by the parties; a range of decisions were open to it under s 63(3) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). However there was a failure to afford procedural fairness by the Tribunal’s failure to uphold its obligation to invite the parties to comment before granting the licence subject to conditions. It had a duty, under s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to, as reasonably as practicable, ensure all parties had a reasonable opportunity to be heard, though, pursuant to s 38(1)(a), it was open to the Tribunal to determine the manner and timing of such invitation ([34]-[37]).
(ii) The Commissioner could not claim procedural unfairness by any absence of opportunity to comment on a principle relied on by the Tribunal that the incidence of law-breaking in male offenders drops off after the age of 25, noting the applicant was, at that time, aged 24. The Tribunal was not bound by the rules of evidence; even if the proposition was within the scope of the Evidence Act 1995 (NSW), and therefore the Tribunal was required to give the parties opportunity to make submissions, the Commissioner was not only aware of the Tribunal’s belief in the proposition, but addressed the proposition in submissions. As such, the Commissioner’s argument that the consideration of the proposition in the 2019 decision was made arguendo (for the sake of argument), whereas in the 2021 decision it was a factor supporting the Tribunal’s decision, is irrelevant, the Commissioner having had a reasonable opportunity to comment on the proposition ([42]-[47]).
(iii) The condition placed by the Tribunal on the respondent’s licence, that the Commissioner may summarily revoke the licence should the respondent accumulate five or more driver demerit points, was beyond power. Though the power conferred by s 21(3) of the Security Industry Act is broad, it does not give the Tribunal power to confer on the Commissioner a separate power of revocation to that which he already held, nor the power to adopt a particular procedure in the exercise of that power ([53]-[55]).
(iv) The Tribunal found that where the issue to be decided in assessing whether a person is “fit and proper” under s 15(1)(a) is whether circumstances have arisen that would justify licence cancellation or suspension, the onus of proving such circumstances is on the party alleging a change of circumstances. The Commissioner submitted that this finding was problematic, as it effectively required the Commissioner to prove the respondent was unfit and improper. This submission was rejected: the Tribunal did not impose an evidentiary or legal onus on the Commissioner; the language of the Tribunal’s decision makes it clear that it was reviewing a decision to revoke a licence and as such required the respondent to demonstrate he had changed. This ground of appeal failed ([58], [60]-[64], [66]-[67], [70]).
(v) The Tribunal failed to explain the inconsistency between finding, as it did, that the respondent was a fit and proper person pursuant to s 15(1)(a), and that refusal of a licence would not be in the public interest, pursuant to s 15(3), with the licence condition requiring the respondent not to accumulate five or more driver demerit points before 31 December 2021. It may be inferred, as the Commissioner submitted, that the Tribunal had misgivings about whether the relevant criteria were met, and thereby made only a provisional assessment, to be satisfied after 31 December 2021. The Tribunal misapplied the criteria of s 15(1)(a) and s 15(3), which must be satisfied at the time of the decision, not at some future date; the Commissioner’s ground of appeal is established ([74], [76]-[80]).
(vi) The appeal was allowed and the matter remitted to the Tribunal for reconsideration. As the decision under appeal was over six months ago, the parties were permitted to submit further evidence ([82]).
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| Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; A Britton, Principal Member
In sum: The Appeal Panel allowed the appeal of the appellant from an ancillary decision of the Tribunal. The Appeal Panel found that the Tribunal did not have jurisdiction to decide the matter because it concerned a requirement to undertake an assessment, and not the imposition of a condition on a licence, and was therefore not an administratively reviewable decision.
Facts: The appellant (the Commissioner) suspended the respondent’s firearms licence, and required him to undertake a mental health assessment in order to assist the Commissioner in deciding whether or not to revoke the licence. The respondent sought administrative review of this decision, alleging it amounted to a condition on his firearms licence. The Firearms Act 1996 (NSW) gives the Tribunal jurisdiction to review the revocation of a licence and conditions imposed by the Commissioner on a licence, under ss 75(1)(b) and (1)(c) respectively. The Commissioner applied for summary dismissal on the basis that the “request” was not a “requirement” or “condition”, and therefore the Tribunal does not have administrative review jurisdiction. The Tribunal found that it did have jurisdiction and refused the Commissioner’s application. The Commissioner appealed ([1]-[2]).
Held (allowing the appeal):
(i) The decision appealed from was an ancillary decision, and therefore leave to appeal was not required. Though the distinction between ancillary and interlocutory decisions is not self-evident, an ancillary decision includes, under s 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), “a decision concerning whether the Tribunal has jurisdiction to deal with a matter”. This can be distinguished from interlocutory decisions, which include decisions concerning “the summary dismissal of proceedings”; the use of the word “matter” rather than “proceedings” in the former definition suggests that an application to the Tribunal for administrative review does not amount to “proceedings” unless the Tribunal has jurisdiction to deal with the application. Such terminology is consistent with the Tribunal’s duty to satisfy itself that it has jurisdiction, whether or not a party applies for the matter to be dismissed. Therefore, a decision concerning the Tribunal’s jurisdiction to deal with a matter is not dependent on an application having been made for summary dismissal. Despite ostensibly being made under the summary dismissal power, the Tribunal’s decision is not a summary dismissal of “proceedings”. Even if leave were required in this case, it would be granted ([20], [24]-[27]).
(ii) Though he made submissions on it, the Commissioner did not expressly appeal from the Tribunal’s finding of fact that the mental health risk assessment was required, rather than requested. If the Commissioner had sought leave to appeal, it would have been refused, as the finding was reasonably open on the evidence, the Commissioner having stated in the notifying letter to the respondent that he was “required” to undertake the assessment ([28]-[30]).
(iii) The requirement to undertake an assessment is not a condition on the respondent’s licence because the Commissioner cannot impose conditions on a suspended licence. A requirement will only be a condition if it affects the authority of the licensee to possess or use a firearm, and a condition must be imposed on the licence itself; s 19(1) of the Firearms Act says a licence may be issued subject to such conditions as the Commissioner thinks fit. Under s 22(3), a suspended licence does not authorise the possession or use of firearms during the period specified in the suspension notice. As such, conditions cannot be imposed on a suspended licence because the licensee is no longer authorised to possess or use firearms ([35]).
(iv) Section 6(3) of the Administrative Decisions Review Act 1997 (NSW) defines “decision” to include decisions made without power; as such, a decision purporting to impose a condition, but done in a legally ineffective way, may be reviewed under s 75(1) of the Firearms Act, which confers administrative review jurisdiction over a decision to impose a condition on a licence. However the Commissioner did not purport to impose a condition; the Commissioner purported to require the respondent to undertake an assessment before determining whether or not to revoke his licence. Section 6(3) does not apply to the facts of this case as it does not involve an administratively reviewable decision ([39]-[40]).
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| Administrative and Equal Opportunity Division
A Britton, Principal Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel refused leave to appeal and dismissed the appeal of two appellants who alleged collection of their personal data by the respondent infringed the Privacy and Personal Information Protection Act 1998 (NSW). The Appeal Panel found that the Tribunal made an error of fact, but that the Tribunal’s ultimate finding was correct; consequently the Tribunal found that a grant of leave to appeal would serve no useful purpose and would not be consistent with NCAT’s guiding principle.
Facts: As part of an agreement between the respondent, the University of New England (UNE), and the Commonwealth to streamline student visa applications of prospective overseas students, UNE gathered personal information of prospective overseas students and others. UNE agreed, under the Commonwealth’s Simplified Student Visa Framework (SSVF), to ensure international students to whom it made an offer of admission satisfied certain criteria of the Migration Regulations 1994 (Cth). The ultimate decision on granting a visa was made by the Commonwealth ([11], [38]).
The first appellant (DQV) was a sponsor for his brother (DQU), the second appellant’s student visa application, and his personal information was collected for the purposes of a pre-assessment of his brother’s application. The brothers alleged this data collection contravened the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), and sought internal review by UNE. UNE found it had complied with the information protection principles under the Act. The brothers sought review at the Tribunal; the Tribunal found there had been no contravention of the Act, and the brothers appealed to the Appeal Panel ([1]-[3], [13]-[14]).
The appellants argued that the Tribunal misapplied the words “directly related to a function” in s 8(1)(a) of the PPIP Act, which prohibits the collection of personal information by a public sector agency unless the collection is directly related to a function of the agency. The Tribunal found the collection was for the purpose of assessing whether a prospective overseas student was a genuine temporary entrant, and the assessment was made under the SSVF ([36], [38]).
Held (dismissing the appeal):
(i) The Tribunal failed to explain why the collection of personal information for pre-visa assessments was for a purpose directly related to either of the functions of UNE the Tribunal identified under s 6(2) of the University of New England Act 1993 (NSW) (UNE Act). The purpose of undertaking a pre-visa assessment is not prima facie related to UNE’s function of providing a course of study within s 6(2)(c), and indirect relation is not sufficient for s 8(1)(a) of the PPIP Act. Nor is the purpose of pre-visa assessment prima facie related to the function of developing admission policies under s 6(2)(g), because the information was collected in relation to policies which had already been developed ([42], [44]-[46]).
(ii) The Tribunal’s error does not mean UNE’s collection of personal information was not directly related to a function; the Tribunal was not asked to consider whether the collection related to the general or ancillary functions UNE has as necessary or convenient for enabling or assisting UNE to promote its object and interests, or as may complement or be incidental to the promotion of the object and interests of UNE, pursuant to s 6(3)(c) of the UNE Act ([50]).
(iii) Further, s 8(1)(a) of the PPIP Act permits the collection of personal information in direct relation to “activities” of the agency, in addition to functions. The term “activity” is broad; there can be little doubt that the personal information was collected in direct relation to the activity of pre-visa assessments, or providing the results of such assessments to the Commonwealth. As such, leave to appeal on this error of fact was refused ([51]-[52]).
(iv) The Appeal Panel rejected the appellants’ claim that UNE acted beyond power by relying upon the SSVF, which is a policy document which was published by the Department of Home Affairs after the time the appellants’ personal information was collected, and not a clear statutory provision, when UNE asked for the appellants’ personal information. No error of law was established because the SSVF had in fact been publicly available for some years before the personal information was collected from the appellants. ([63], [65], [68]).
(v) Even if the SSVF had not been published at the date of the collection of the appellants’ personal information, it does not follow that UNE’s collection of personal information was not for a lawful purpose; the appellants misunderstood the effect of the publication of a policy and the nature of UNE’s arrangements with the Commonwealth. Contrary to the appellants’ submissions, the Commonwealth did not delegate its function of assessing visa applications by way of policy; UNE merely undertook pre-visa assessments while the function of determining applications remained with the Commonwealth. Further, the policy was not dependent on publication to come into effect. Whilst transparency is generally an administrative virtue, the question of whether the agency has adopted a policy, and whether the policy is “in force”, is a question of fact. There is no doubt, and the Tribunal found, that UNE collected the appellants’ personal information in fulfilment of its role as a participant in the SSVF. Leave to appeal on this ground was refused and the appeal was dismissed ([69]-[71], [75]-[76]).
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| | | Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; A Suthers, Principal Member
Catchwords: APPEAL – leave required – appellant fails to comply with directions or make timely application for extension - no proper basis to allow extension – amount in issue less than $600.00 – proper allocation of resources of the Tribunal and weighing of respective prejudice to the parties
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; A Britton, Principal Member
Catchwords: ADMINISTRATIVE LAW — jurisdictional error — merits review — jurisdiction of Civil and Administrative Tribunal — where Commissioner of Police required person whose firearms licence had been suspended to undertake a mental health risk assessment — whether that requirement amounts to/can be properly characterised as the imposition of a condition on the firearms licence — whether requirement purports to impose a condition on the licence
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| Consumer and Commercial Division - Social Housing
Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member
Catchwords: LEASES AND TENANCIES — identity of landlord — effect of concurrent leases under s 13A of Housing Act 2001 (NSW) — where rent paid in error to incorrect landlord
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| Consumer and Commercial Division - Consumer Claim
Decision of: G Curtin SC, Senior Member; A Boxall, Senior Member
Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal — internal appeals — leave to appeal on a ground other than a question of law — principles governing — no question of principle
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| Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J McAteer, Senior Member
Catchwords: APPEALS — procedure — time limits — extension of time — principles — delay of two years — no question of principle
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| Consumer and Commercial Division - Strata
Decision of: T Simon, Principal Member; S Goodman SC, Senior Member
Catchwords: COSTS – costs on appeal – where party given leave to be legally represented on the condition that it may not recover legal costs
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; D Fairlie, Senior Member
Catchwords: APPEAL, whether expert evidence requires reference to the Experts Code of Conduct- leave to appeal, criteria for granting leave
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| Administrative and Equal Opportunity Division
Decision of: A Britton, Principal Member; Dr J Lucy, Senior Member
Catchwords: APPEALS – Privacy – Where respondent collected personal information of prospective overseas students and their sponsors for the purpose of making a pre-visa assessment to be provided to a Commonwealth entity - Whether respondent’s purpose of collection was directly related to a function or activity of the respondent – Whether leave should be granted where error of fact established – Whether appellant entitled to appeal in respect of finding about the personal information of his brother, a co-applicant, where brother had not appealed – Whether Tribunal had erred by making findings in reliance upon a policy which had not been published at relevant times
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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 — rent and outgoings — recovery of rent — errors in calculation — no question of principle
LEASES AND TENANCIES — repairs, maintenance and alterations — obligation to repair and maintain — breach — unreasonably lengthy time to repair — damages — no question of principle
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| | Woodward v Warwick Green Building Pty Ltd [2021] NSWCATAP 210 Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)¬ – Contract not complying with the Home Building Act - Quantum meruit – Whether do-and-charge building contract an entire contract – Where owner had paid invoices issued by builder but failed to pay further invoices – Whether assessment of value of benefit received by owner should include work the subject of invoices which had been paid – Sufficiency of evidence - Whether builder had established the reasonable value of work performed
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| Consumer and Commercial Division - Motor Vehicles
Decision of: T Simon, Principal Member; G Curtin SC, Senior Member
Catchwords: CONSUMER LAW – consumer guarantees - defective repairs to motor vehicle - whether repairs to a motor vehicle the supply of goods or services – first inquiry is whether transaction involves a supply of goods – supplies of goods under the Australian Consumer Law includes supplies of goods together with services - supplies of services under the Australian Consumer Law does not include supplies of services together with goods – if the whole of the transaction involves the supply of goods then none of the supply will involve a service
LIMITATION OF ACTIONS – jurisdiction of the Civil and Administrative Tribunal under s 79L of the Fair Trading Act – when cause of action of action accrues for failure to comply with consumer guarantees under the Australian Consumer Law – when cause of action accrues in relation to supplies of goods – when cause of action accrues in relation to supplies of services
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| Consumer and Commercial Division - Motor Vehicles
Decision of: A Bell SC, Senior Member; D Robertson, Senior Member
Catchwords: CONSUMER LAW – 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: COSTS – no question of principal
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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 damage – no question of principle
INSURANCE - subrogation - insured and uninsured losses – partial indemnity by the insurer provides no defence to the wrongdoer
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| Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J Lucy, Senior Member
Catchwords: COSTS — no question of principle
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| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; M Gracie, Senior Member
Catchwords: APPEALS- applications to reinstate appeal or set aside appeal decision where appellant not present at hearing-representative granted leave to appear-representative appeared at appeal hearing-conditions for exercise of powers to grant relief did not exist
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| Consumer and Commercial Division - Consumer Claim
Decision of: Cowdroy ADCJ, Principal Member; G Curtin SC, Senior Member
Catchwords: APPEALS — consumer claim — contract by travel agent to make reservations for airline services for overseas travel, accommodation and excursions — contract frustrated — whether travel agent acted as general principal — whether travel agent personally liable to reimburse client for services
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| Consumer and Commercial Division - Strata
Decision of: A Bell SC, Senior Member; D Robertson, Senior Member
Catchwords: LAND LAW – Strata title - Owners corporation — Meetings of owners corporation - Strata Schemes Management Act 2015 (NSW) - Application under section 24 to invalidate resolutions at general meeting - Relevant principles
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| | Kazacos Investments Pty Ltd atf Kazacos Investments Trust v Maher [2021] NSWCATAP 219 Consumer and Commercial Division - Tenancy
Decision of: D Robertson, Senior Member; A Boxall, Senior Member
Catchwords: APPEAL – Question of law – Sufficiency of reasons where oral reasons given ex tempore and no request made for written reasons
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Obligation of landlord to provide and maintain premises in a reasonable state of repair – Premises rendered uninhabitable by mould – Whether Tribunal impermissibly reversed the onus of proof in respect of the cause of the mould
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| Consumer and Commercial Division - Home Building
Decision of: R C Titterton OAM, Senior Member; D Charles, Senior Member
Catchwords: APPEALS – Application for leave to appeal – no question of principle – whether the Tribunal erred in finding that the appellants were not parties to the contract relied on
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| Administrative and Equal Opportunity Division
Decision of: L Pearson, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEALS – administrative review – construction of cl 1(e) of Table in s 14 of the Government Information (Public Access) Act 2009 - irrelevant consideration – failure to address argument – illogicality
APPEALS – leave to appeal – challenges to findings of fact
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| Consumer and Commercial Division - Strata
Decision of: K Ransome, Senior Member; J Kearney, Senior Member
Catchwords: APPEAL – strata scheme – reallocation of unit entitlements – application to vary past contributions in line with new allocation of unit entitlements – application of s 87 of Act – denial of procedural fairness – exercise of discretion – while error of law found no error in exercise of discretion
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| Consumer and Commercial Division - Consumer Claim
Decision of: Cowdroy ADCJ, Principal Member; A Boxall, Senior Member
Catchwords: APPEALS — appellant failed to attend Tribunal hearing — procedural fairness provided to parties — no unfairness to appellant — leave to bring appeal refused
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| Consumer and Commercial Division - Strata
Decision of: R C Titterton OAM, Senior Member; A Boxall, Senior Member
Catchwords: LAND LAW – strata title – common property – common property rights by-law – whether unreasonable refusal to consent
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| Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; J Currie, Senior Member
Catchwords: LANDLAW – strata title – appointment of compulsory manager to strata scheme, whether appointment possible in light of appointment of existing strata manager, whether appointment possible when no meeting has occurred under s 237(6)
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| Consumer and Commercial Division, Administrative and Equal Opportunity Division
Decision of: A Britton, Principal Member; C Mulvey, Senior Member
Catchwords: ADMINISTRATIVE LAW — hearing rule — disclosure — matters of common knowledge
ADMINISTRATIVE LAW — meaning of “condition” in Security Industry Act 1997 (NSW)
EVIDENCE — burden of proof — applications under Administrative Decisions Review Act 1997 (NSW)
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| Consumer and Commercial Division - Home Building
Decision of: K Ransome, Senior Member; S Goodman SC, Senior Member
Catchwords: APPEAL – building claim – decision said to be against the weight of the evidence – whether decision not fair and equitable – no substantial miscarriage of justice – leave to appeal refused – no error of law in exercise of discretion
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; D Charles, Senior Member
Catchwords: APPEALS — error of law
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rental bonds — payment and release — rental bond paid for tenancy by husband and wife — whether wife should receive whole of bond following termination of tenancy agreement
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| Consumer and Commercial Division - Strata
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: APPEALS-orders consequential upon substantive decision-remittal of claims for redetermination-costs
COSTS - -costs of the appeal follow the event-substantial success by the appellant
LAND LAW - Strata title –orders consequential upon substantive decision-set aside appointment of compulsory strata manager-set aside orders varying amount of the levy
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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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