NCAT Appeal Panel Decisions Digest Issue 7 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 July 2024: |
Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130: An Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division which had terminated a social housing residential tenancy agreement. The landlord had applied to NCAT to have the agreement terminated on the basis the tenant breached the agreement by failing to keep the residential premises in a reasonable state of cleanliness. NCAT failed to provide directions for the parties to provide evidentiary material and submissions, and proceeded to hear the matter during the group list. This meant that the tenant had insufficient time to consider the evidentiary material of the landlord which he received at, or shortly prior to, the hearing. It also meant no party was sworn in to provide evidence, and no structured hearing took place. The Appeal Panel held that the tenant had been denied procedural fairness and had not been able to be heard. The Appeal Panel also found that NCAT had failed to have regard to mandatory considerations under the Residential Tenancies Act 2010 (NSW) (RT Act) and failed to provide adequate reasons, such that several errors of law occurred.
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Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134: An Appeal Panel allowed an appeal from a decision which had ordered that a supplier perform repairs to the consumer’s vehicle. The consumer had paid the supplier to convert her van into a campervan and the conversions completed meant the van’s weight exceeded the manufacturer’s limit and also that the van was unsafe to drive in its current form. The Appeal Panel found that, by failing to consider whether the supplier had breached the consumer guarantee that goods be of acceptable quality under s 54 of the Australian Consumer Law (NSW) (ACL), in addition to the breach under s 55 of the ACL, NCAT applied the wrong legal principle and there existed a constructive failure by NCAT to exercise jurisdiction.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Will failing to give directions for parties to lodge evidence and submissions result in a breach of procedural fairness?
Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 Consumer and Commercial Division P Durack SC, Senior Member; S de Jersey, Senior Member
In sum: In circumstances where it is contested whether the conditions for the exercise of NCAT’s discretion to terminate a residential tenancy under s 87 of the RT Act are satisfied, procedural fairness will often be afforded by NCAT providing directions for the provision of evidence and submissions prior to a hearing, as well as the opportunity to be heard at a hearing. Additionally, where evidence relied upon by one party is shown to the other party at, or shortly before, the hearing, this may also impact on the party’s reasonable opportunity to be heard on a defence to a claim for termination.
Facts: The appellant (the tenant) resides in social housing. The respondent (the landlord, NSW Land and Housing Corporation) sought to terminate the residential tenancy agreement pursuant to s 87 of the RT Act on the basis that the tenant breached s 51(2)(a) of the RT Act which provides that a tenant must “keep the residential premises in a reasonable state of cleanliness”. The landlord alleged there was severe hoarding and property care issues. Under s 87(4)(b) of the RT Act, NCAT may, on application by a landlord, make a termination order if it is satisfied that a breach of the lease is sufficient to justify termination of the agreement.
Following the landlord’s application to NCAT, the tenant did not attend the first listing, and NCAT made several orders in the tenant’s absence including an order that items be cleared from some parking spaces in the basement, and another for cleanup inside the unit. At this stage, there had been no directions made by NCAT for the parties to provide any evidence or submissions. The landlord later requested that NCAT relist the proceedings on the basis the tenant had not complied with the orders. The proceedings then came before NCAT for hearing and conciliation in a group list. There was a short hearing and the tenant appeared. There had still not been any directions made for the parties to provide each other with evidentiary material and written submissions – a step which is commonly ordered at a group list hearing in a contested matter, and the tenant was required to deal with material lodged by the landlord at, or shortly prior to, the hearing. NCAT then made orders terminating the residential tenancy agreement. On appeal, the tenant raised several grounds of appeal, including that he was not afforded procedural fairness at first instance, and that NCAT failed to address mandatory considerations under the RT Act.
Held (allowing the appeal, setting aside the orders made at first instance, and remitting the proceedings to the Consumer and Commercial Division for hearing and redetermination): (i) Usually, in a contested matter of this nature, where there are real issues concerning the satisfaction of conditions for the exercise of the discretion to terminate a residential tenancy under s 87 of the RT Act, the procedural fairness requirement is satisfied by a combination of directions for the provision of evidence and submissions prior to a hearing, as well as the opportunity to be heard at a hearing. No such directions were made, and whilst a short hearing did occur, it was a less than satisfactory opportunity for the appellant to present his case (at [72]-[73]). |
(ii) The appellant was clearly denied a reasonable opportunity to be heard given that he only saw a substantial quantity of new evidentiary material relied upon by the respondent at, or shortly before, the short hearing. Additionally, there had been no directions for the parties to provide their evidence and submissions before the hearing, no structured hearing on the merits, including sworn evidence in support of their cases, and little examination with the parties. In these circumstances, it was inappropriate to proceed for hearing and determination in the short period available in the group list that day (at [74]-[75]). The Appeal Panel found that there existed a realistic possibility of a different outcome had procedural fairness been afforded to the tenant, and therefore it was satisfied the breach of procedural fairness was material (at [76]). |
(iii) NCAT at first instance also failed to properly consider mandatory matters. Several Appeal Panel cases have adopted the position that adequate attention will not have been paid to a mandatory consideration where NCAT’s process was merely a formulaic reference to the consideration, when what is required is a proper, genuine and realistic consideration of the matter (see, e.g. Director General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28]; Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 154 at [30]; King v NSW Land and Housing Corporation [2022] NSWCATAP 165 at [38]) (at [83]). |
(iv) A proper, genuine and realistic consideration of the s 87(4)(b) mandatory consideration that the breach be sufficient to justify termination, should have focused on the specific terms of the order, and the extent of non-compliance with those terms. A proper consideration of the s 154E mandatory considerations for social housing tenancy arrangements should have involved addressing the questions raised about the significance of each of the five factors in s 154E(1) and whether these factors operated in favour of or against termination of the tenancy. NCAT failed to address these matters in its reasons such that an error occurred (at [87]-[90]). |
2. Will works completed on a vehicle constitute a “major failure” to comply with a consumer guarantee under s 260(1) of the ACL, where the works performed mean the vehicle is currently unsafe to drive?
Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 Consumer and Commercial Division Armstrong J, President; G Sarginson, Senior Member
In sum: Under s 260 of the ACL, a failure to comply with a consumer guarantee referred to in s 259(1)(b) will constitute a “major failure” where any of the factors in s 260(1) are satisfied, including where the goods are not of acceptable quality because they are unsafe (s 260(1)(e)). Where a consumer has paid a supplier for a vehicle that would be safe to drive and registered roadworthy, the vehicle should not be deemed ‘safe’ because it cannot be legally driven until modifications have been approved under the relevant scheme. To find that the vehicle was only unsafe if it was not driven in the condition it was supplied for would render s 260 of the ACL redundant.
Facts: The appellant (the consumer) paid the respondent (the supplier) $69,519.60 to convert her 2019 Volkswagen van into a campervan/motorhome. After the vehicle was deemed not roadworthy, the consumer initiated proceedings in NCAT alleging the supplier breached consumer guarantee provisions in the ACL regarding both the provision of goods and services. Expert evidence was provided by the consumer which stated that, following the conversion, the vehicle was not capable of being registered because its gross vehicle mass exceeded the manufacturers limit, and there were other significant defects which caused the vehicle to be unsafe, including in relation to electrical works. The consumer argued that, in respect of the provision of goods, the breach of the consumer guarantees under both s 54 (acceptable quality) and s 55 (fit for purpose) constituted a “major failure” as defined in s 260 of the ACL. The consumer would then have the right to elect to reject the goods and obtain a refund of the monies paid for the conversion works, together with consequential loss. The total monetary amount claimed by the consumer was $99,769.60.
NCAT at first instance found that, although the supplier had breached the consumer guarantee that goods be fit for purpose under s 55 of the ACL, the failure was not a “major failure” under s 260 of the ACL. NCAT ordered that the respondent perform repairs to the appellant’s vehicle. The appellant appealed from that decision finding issue with NCAT’s failure to perceive the breach as a “major failure” under the ACL and also with the remedy ordered. The appellant instead sought that the respondent refund the monies paid to complete the vehicle conversion.
Held (allowing the appeal, remitting the proceedings to the Consumer and Commercial Division to be reconsidered): (i) NCAT at first instance failed to deal with a potential breach of s 54 of the ACL. Breach of s 54 was clearly raised by the consumer’s legal representative, but was not addressed in the reasons for decision. NCAT had only briefly referred to whether the goods would have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, as set out in s 260(1)(a) of the ACL, and found that a reasonable consumer would expect “teething problems”. However, that finding was only made in the context where NCAT had found that the goods supplied were not fit for purpose under s 55 of the ACL. There were no findings made in respect of whether the goods were of acceptable quality under s 54. Determination of whether or not the supplier had breached s 54 of the ACL was critical to the finding of whether or not there was a “major failure” under ss 259(3)(a) and 260(1)(a) of the ACL and should have been clearly established. A failure to consider s 260 in the context of a breach of s 54 where this had been clearly argued is a constructive failure to exercise jurisdiction giving rise to an error of law material to the outcome (at [50]-[54]). |
(ii) NCAT applied the wrong legal principle when it found that the goods were not necessarily “unsafe” simply because the vehicle could not be legally driven without being certified under the relevant Scheme and registered. To find that the vehicle was only unsafe if it was not driven in the condition it was supplied renders s 260(1)(a) of the ACL redundant. The consumer had paid the respondent to convert the vehicle such that it could be safe to drive and registered and that had not been provided. There was no proper consideration of whether the vehicle was of an acceptable quality because it was unsafe. Further, NCAT again made no findings as to whether or not the goods were of acceptable quality under s 54 of the ACL, instead solely considering the issue of safety in the context of its findings that the goods were not fit for purpose under s 55 of the ACL (at [56]-[61]). |
(iii) NCAT’s approach was to instead focus on s 260(1)(c) and (d) which involved considering whether the goods can be easily remedied to make them fit for purpose. However, NCAT erred in that if the breach of the consumer guarantee was a “major failure” within s 260(1)(a) or (e), it was irrelevant whether the goods were capable of being easily remedied to render them fit for purpose (at [62]). The finding that there had been a “major failure” was critical to the type of remedy the consumer could elect. |
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Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; S de Jersey, Senior Member Catchwords: LEASES AND TENANCIES-termination of social housing tenancy agreement for breach by the tenant-s 87 of the Residential Tenancy Act 2010 (NSW)-breach of tenant’s obligation to keep residential premises in a reasonable state of cleanliness -hoarding-failure to comply with orders to cleanup inside the residential premises and also areas outside the premises-whether breach, in the circumstances of the case, sufficient to justify termination-s 154E mandatory considerations-appeal from termination and possession ordered by Tribunal. APPEALS-questions of law-procedural fairness-decision made in contested matter after short hearing in group list-no previous directions for provision of evidence and submissions before hearing-additional documentary evidence relied upon by the landlord shown to tenant at, or shortly before, the hearing only-no reasonable opportunity to be heard on defence to the claim for termination-whether consideration of mandatory matters formulaic only-whether adequate reasons given for decision-materiality of errors. |
Sierra v Underwater Australasia Pty Limited [2024] NSWCATAP 131 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; D Goldstein, Senior Member Catchwords: CONSUMER LAW – ss 54 and 55 of the Australian Consumer Law of New South Wales – goods of acceptable quality – fitness for purpose – requirements to establish a claim – durability – relevant evidence – no error in Tribunal’s reasoning |
Reznitsky v Commissioner of Fines Administration [2024] NSWCATAP 132 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Dismissal of proceedings - Civil and Administrative Tribunal Act 2013 (NCAT Act) ss 55 and 59 – Where appellant filed “Notice of Discontinuance” of his application – Where Tribunal dismissed the application pursuant to s 55(1)(a) of the NCAT Act – No error in Tribunal treating “Notice of Discontinuance” as the withdrawal of the application – No jurisdiction to dismiss proceedings pursuant to s 59 of the NCAT Act in the absence of an agreement to settle the proceedings |
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Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 Consumer and Commercial Division Decision of: Armstrong J, President; G Sarginson, Senior Member Catchwords: APPEALS – questions of law – leave to appeal – failure to engage with clearly articulated case – constructive failure to exercise jurisdiction – wrong legal principle applied CONSUMER LAW - Australian Consumer Law (NSW) - fitness for purpose - modification of vehicle -whether failure a major failure - rejection of goods -remedies - principles applicable |
Johnson v Nachar [2024] NSWCATAP 135 Consumer and Commercial Division - Residential Tenancy Decision of: S Thode, Principal Member; E Bishop SC, Senior Member Catchwords: LEASES AND TENANCIES — Breach of tenancy agreement — No evidence — Assessment of damages |
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Stojonoff v Webber (No 2) [2024] NSWCATAP 137 Consumer and Commercial Division - General Decision of: G Blake AM SC, Senior Member; P Durack SC, Senior Member Catchwords: APPEALS — Constructive failure to exercise jurisdiction — Appeal dismissed APPEALS — Leave to appeal — Principles governing — Leave to appeal refused APPEALS — Procedural fairness — Evidence does not establish Tribunal member fell asleep during hearing — Appeal dismissed CIVIL PROCEDURE — Non-publication order — Application dismissed |
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El-Mohamad v Lin [2024] NSWCATAP 139 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — application for compensation and for order that rent excessive. APPEALS — whether Tribunal erred in the exercise of its discretion — whether Tribunal asked itself the wrong question or identified the wrong issue — whether Tribunal applied the wrong test — whether Tribunal failed to exercise jurisdiction — whether decision against the weight of evidence — decision of Tribunal substituted with decision of Appeal Panel. |
Boreland v Brewis [2024] NSWCATAP 140 Consumer and Commercial Division Decision of: Armstrong J, President; G Sarginson, Senior Member Catchwords: APPEALS — dividing fence — conduct of hearing — procedural unfairness established — realistic possibility of a different outcome — appeal allowed PROCEDURAL FAIRNESS — content of obligation to afford parties procedural fairness — failure of Tribunal to give parties a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings as required by Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) |
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Sethi v Secretary, Department of Communities and Justice [2024] NSWCATAP 142 Administrative and Equal Opportunity Division Decision of: M Harrowell, Deputy President Catchwords: PRATICE AND PROCEDURE – failure to comply with directions – relevance of Tribunal complaint process to determination of appeal – obligation on a party to comply with directions – dismissal for want of prosecution, abuse of process and failure to comply with directions. |
Ghavamzadeh v Semaan [2024] NSWCATAP 143 Consumer and Commercial Division Decision of: Balla ADCJ, Principal Member; S Thode, Principal Member Catchwords: LEASES AND TENANCIES — Tenant’s liability for electricity usage charges — Tenant’s liability for repairs at end of tenancy |
Alam v Rahman [2024] NSWCATAP 144 Consumer and Commercial Division Decision of: A Balla ADCJ, Principal Member; S Thode, Principal Member Catchwords: APPEALS — BUILDING AND CONSTRUCTION---Home Building Act 1989 (NSW)--- s 48K ---Jurisdiction of Tribunal to hear and determine a claim as made – if claim as made over jurisdictional limit of the Tribunal |
Dart v The Owners - Strata Plan No. 71849 [2024] NSWCATAP 145 Consumer and Commercial Division Decision of: D Charles, Senior Member; M Deane, Senior Member Catchwords: APPEAL – Errors on questions of law – no evidence to support finding - failure to consider a party’s submissions – not applying legal principle. STRATA - Duty to maintain and repair common property – liability of owners corporation for damage for breach of duty. LIMITATION OF ACTION – whether s 106(6) Strata Schemes Management Act 2015 (NSW) applies where applicant seeks a work order. |
Cornish v Penrith City Council (No 2) [2024] NSWCATAP 146 Occupational Division Decision of: T Simon, Principal Member; Dr R Dubler SC, Senior Member Catchwords: COSTS---Rule 38A Civil and Administrative Tribunal Rules 2014--- where party given leave to be legally represented on the condition that it may not recover legal costs--- special circumstances LOCAL GOVERNMENT – Councillors |
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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. |
