| | | NCAT Appeal Panel Decisions Digest Issue 8 of 2020 |
| 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 September 2020: - Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 - in which the Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division, relating to (a) the scope of cl 7(b) of the Gaming and Liquor Administration Regulation 2016, specifically, whether the phrase "application for an ongoing extended trading authorisation" includes an application to vary an extended trading authorisation, and (b) the effect of previous comments, made in obiter, by a single Supreme Court judge relating to the construction of cl 7(b), and whether those comments could be said to be "seriously considered".
- Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 - in which the Appeal Panel allowed an appeal in part from the Administrative and Equal Opportunity Division, on the basis that the Tribunal erred in (a) failing to have regard to a material submission in deciding whether cl 1(d) in the Table in s 14 of the Government Information (Public Access) Act 2009 applied, and (b) failing to address why certain information was ordered to be withheld from disclosure, while the same or similar information in other documents was ordered to be disclosed. The Appeal Panel also made comments about the use of the words "modest", "moderate", etc. to describe the weight attributed to different public interest considerations. Also at issue was the role of "third party objectors" in GIPA proceedings, including (a) whether a person who appears in first instance proceedings pursuant to the right in s 104(3) of the GIPA Act has the right to bring their own internal appeal, (b) whether the right to appear and be heard under s 104(3) extends to a right of appearance in internal appeals, and (c) in what circumstances a person should be joined as a party under s 44 of the NCAT Act.
- Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 - in which the Appeal Panel dismissed an appeal from two decisions in the Consumer and Commercial Division, holding that the Tribunal (a) did not err in concluding that it had the power under s 63 of the NCAT Act to amend the name of the appellant on a money order after it was made, and (b) did not fail to properly apply s 48MA of the Home Building Act 1989, which is not a mandatory provision, but operates in the manner of a presumption, such that the Tribunal retains a discretion as to what orders to make in determining a home building claim.
- Walker v The Owners – Strata Plan No 1992 [2020] NSWCATAP 192 - in which the Appeal Panel allowed an appeal from the Consumer and Commercial Division, on the basis that the Tribunal below erred in failing to order, under s 188 of the Strata Schemes Management Act 2015, that the owners corporation supply records which a lot-owner was entitled to inspect under various provisions in s 182(3). The Tribunal erred in holding that the owners corporation was not required to provide access to the records on the basis that they were not "requirements for financial statements" pursuant to s 93 of that Act, and contained "private" information of other lot owners.
- The Owners – Strata Plan No 63731 v B & G Trading Pty Ltd [2020] NSWCATAP 202 - in which the Appeal Panel allowed an appeal from the Consumer and Commercial Division, on the basis that the Tribunal below erred in finding that a purported "common property rights by-law" under s 142(b) of the Strata Schemes Management Act conferred "special privileges" which, pursuant to s 111(b), exempted the lot owner from compliance with the usual authorisation requirements for common property work under s 108 of that Act. The Appeal Panel held that the phrase "special privileges" should be read down such that it does not extend to exemptions from statutory obligations or restrictions. Further, it held that s 111(b) does not exempt lot-owners from compliance with the authorisation requirements in s 108, in contrast to the express provisions to that effect in ss 109 and 110 (which relate to "cosmetic" and "minor renovation" works on common property).
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Administrative and Equal Opportunity Division Armstrong J, President; A Britton, Principal Member
In sum: The Appeal Panel dismissed an appeal from the Administrative and Equal Opportunity Division, holding that the Tribunal below did not err in its construction of cl 7(b) of the Gaming and Liquor Administration Regulation 2016 (NSW) (the GALA Regulation) – in particular, the phrase “application for an ongoing extended trading authorisation”. The Appeal Panel also held that neither it nor the Tribunal below was required to follow the obiter comments of a single Supreme Court judge relating to the construction of cl 7, where those comments were not “seriously considered”.
Facts: The appellants in this appeal are each holders of a hotel licence and an Extended Trading Authority (ETA) in respect of that licence. Each applied separately to the Independent Liquor and Gaming Authority (the Authority) seeking an extension of their ETA, had that application rejected, and sought review of the Authority’s decision in the Administrative and Equal Opportunity Division ([1]).
The Tribunal dismissed both applications for review, on the basis that NCAT does not have jurisdiction to review decisions about varying an ETA, as opposed to granting an ETA for the first time ([2]).
This turned on the Tribunal’s construction of cl 7(b) of the GALA Regulation, which provides that a “prescribed” application for the purpose of s 13A of the Gaming and Liquor Administration Act 2007 (NSW) (the GALA Act) includes “an application for an ongoing extended trading authorisation in relation to a licence…. that would result in trading after midnight” ([2], [11], [16]). The question for the Tribunal below, and in this appeal, was whether the phrase “application for an ongoing ETA” includes applications to vary an ETA.
Both appellants appealed, on the basis that the Tribunal erred in holding that cl 7(b) does not include applications to vary an existing ETA, and in declining the follow the obiter dicta of Schmidt J in Rogers v Independent Liquor and Gaming Authority (No 2) [2018] NSWSC 1177 (Rogers No 2) relating to the construction of that clause ([18]-[19]).
In particular, the appellants relied on Schmidt J’s comments at [109] of that decision, as follows:
“… [H]ad the application been for a variation of the Hotel’s authorisation for extended trading, so that it would still cease after midnight, but at some earlier time than was permitted under the existing authorisation, the application would undoubtedly have been one that “would result in trading after midnight”, if granted. That under the existing authorisation, later trading after midnight was permitted, would not alter the nature of the variation application. Such an application would thus have fallen within reg 7.”
Held (dismissing the appeal):
Whether cl 7(b) should be construed to include applications to vary an ETA – NO
(i) In the Appeal Panel’s view, considered in its statutory context, the phrase in cl 7(b), “application for an ongoing ETA” does not encompass both applications to grant new ETAs and applications to vary existing ETAs. Accordingly, the Tribunal did not err in dismissing the appellants’ merits review applications for want of jurisdiction ([67], [104]).
(ii) While the Appeal Panel considered that the plain meaning of the words in cl 7(b) were wide enough, on their face, to encompass both fresh applications for an ETA and applications to vary an existing ETA, it had regard to the following contextual factors which predominantly weighed against that conclusion ([47]):
a. The immediate legislative context within cl 7, particularly the express use of the word “vary” elsewhere in the clause, tended against the wording in sub cl (b) including variation in its ambit ([51]).
b. Provisions elsewhere in the legislative scheme, particularly ss 49 and 51 of the Liquor Act 2007 (NSW), make separate provision for who can make initial applications and applications to vary an ETA, and for the fee payable in respect of those types of application ([52]).
c. However, the Appeal Panel did not accept the Authority’s argument, or the view of the Tribunal below, that the Liquor Act clearly distinguishes between the “relevant considerations” applicable to applications for and to vary an ETA, in circumstances where the application to vary is made by a licence holder. It is true that s 49(8) and s 51(13) provide separately for restrictions on “granting” an ETA, and on varying an ETA other than on application by the licensee. However, it does not follow that the considerations in s 49(8) are irrelevant to an application to vary an ETA when made by a licensee, and that was not the result of the Supreme Court’s comments in La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2014] NSWSC 1798 ([53]-[58]).
d. While the legislative scheme does not provide comprehensively for the treatment of initial applications for an ETA on one hand, and variation applications on the other, it is clear that the Legislature intended to designate these as separate concepts, and to indicate that they be treated differently in material respects ([59]).
e. The Appeal Panel also considered the use of the phrase “application for an ETA” in s 48(2)(c) and (3B) of the Liquor Act, relating to the requirement to provide community impact statements for applications in relation to small bar licences. While neither construction of the phrase “application for” would provide an entirely harmonious reading of the provisions in s 48, the Appeal Panel was more persuaded by the Authority’s argument that the use of the phrase “application for an ETA” and “application to vary an ETA” side-by-side in ss 48(3B)(c) and (d) “point[ed] to an intentional differential treatment of those concepts by the Legislature” ([60]-[63]).
(iii) While no single contextual indicator tended decisively towards a construction that the phrase “application for an ongoing ETA” does, or does not, include an application to vary, viewed cumulatively, the above factors tended to favour the Authority’s preferred construction ([64]).
(iv) The Appeal Panel also had regard to the objects and purpose of the GALA Act, and to extrinsic materials including the Second Reading Speech for the introduction of that Act. It was clear that s 13A of the GALA Act was introduced to provide an avenue of administrative review of the Authority’s decisions, consistently with the objects of accessibility, responsiveness, fairness, transparency, and public confidence in s 2A of the GALA Act. However, it was equally clear that the right to merits review was not intended to be plenary, and that the question of what decisions would be reviewable was left to be determined by the regulations (including cl 7 of the GALA Regulation) ([68]-[72]).
Whether the Appeal Panel, or the Tribunal below, was required to follow the reasoning in Rogers No 2 – NO
(v) The Appeal Panel set out a number of general principles applicable to the precedential weight of obiter dicta, at [88]-[93]. In particular, it noted (citations omitted):
a. Decisions are only authority for what they decide, as opposed to what was held without argument.
b. Statements made in obiter dicta have varying degrees of authority, and the weight accorded to them will vary depending on the circumstances in which they are made. A “mere passing remark or a statement or assumption on a matter that has not been argued” or “broad observations made on the spur of the moment” will have less weight than “a considered judgment on a point fully argued”.
c. Intermediate appellate courts will generally only depart from earlier authorities of the same court, or courts of coordinate jurisdiction, if they are of the view that the decision is “plainly wrong”.
d. Where a matter was not fully argued before an earlier court, and “relevant material” was not drawn to its attention, a subsequent court of coordinate jurisdiction may consider that a party before it should not be “disadvantaged” by reason of the earlier obiter conclusion.
(vi) The Appeal Panel also had particular regard to Pepper J’s reasoning in Fullerton Cove Residents Action Ground Incorporated v Dark Energy Ltd (No 2) [2013] NSWLEC 38, in which her Honour declined to follow obiter comments relating to the interpretation of a particular provision ([89]-[93]):
a. made by Biscoe J in two previous Land and Environment Court decisions, because the comments did not “disclose the reasoning process dispositive to the controversy”, and Pepper J was “unable to tell” whether or not the decision was “plainly wrong”; and
b. made by Spigelman CJ in a Court of Appeal decision, because the remarks could “not, in all fairness to his Honour, and with the utmost of respect, be characterised as ‘considered’”.
(vii) Based on these principles, the Appeal Panel accepted that an NCAT Appeal Panel, however constituted (i.e. even when a judicial member such as the President is sitting), should follow “seriously considered” obiter dicta of a single Supreme Court judge unless it thinks it is “plainly wrong” ([94]).
(viii) However, the Appeal Panel did not think that Schmidt J’s comments in Rogers No 2, as they related to the issues in this appeal, were “seriously considered”. Although it was not clear what submissions Schmidt J had before her, it was apparent that her statements at [109] of that decision were focused on an analysis of the circumstances in which an application could be said to “result in trading after midnight”, and not on the preceding phrase in cl 7, “application for an ongoing ETA” ([95]).
(ix) As a result, the Appeal Panel did not think it could be said that Schmidt J “seriously considered” the meaning of cl 7 as a whole. Accordingly, neither the Appeal Panel nor the Tribunal below was required to follow her Honour’s reasoning unless it was “plainly wrong” ([102], [105]).
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| Administrative and Equal Opportunity Division
Armstrong J, President; A Britton, Principal Member
In sum: The Appeal Panel allowed an appeal in part from a decision in the Administrative and Equal Opportunity Division, on the basis that the Tribunal erred in failing to have regard to a material submission in deciding whether the public interest consideration in cl 1(d) to the Table in s 14 of the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) applied; and failing to address why certain information was withheld from disclosure, when the same or similar information in other documents was ordered to be disclosed. The Appeal Panel also ordered that an interested third party be joined in the appeal proceedings under s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), but did not consider that it had a right to bring its own appeal from the decision below, or to appear and be heard in the appeal proceedings pursuant to s 104(3) of the GIPA Act.
Facts: The Rice Marketing Board of the State of New South Wales (RMB) is a statutory body constituted under the Rice Marketing Act 1983 (NSW). RMB is currently the only entity permitted to sell and export rice grown in NSW ([6]).
In 2006, RMB granted Rice Growers Ltd t/as SunRice (SunRice) the sole and exclusive export licence (SEEL) to sell NSW-grown rice outside Australia ([7]).
In 2018, Forbidden Foods Pty Ltd (Forbidden Foods) applied under the GIPA Act for access to documents held by RMB, which related to RMB’s decision to grant the SEEL to SunRice, and subsequent reviews of that decision ([10]).
RMB identified 30 documents as falling within the scope of this “access request” and decided to grant access to 9 documents, and refuse access to 21 documents ([11]).
Forbidden Foods applied to NCAT for review of that decision. SunRice appeared in the Tribunal proceedings, exercising its right to appear and be heard under s 104(3) of the GIPA Act as a “person who could be aggrieved” by the Tribunal’s decision ([12], [16]).
The Tribunal varied RMB’s decision, ordering (a) that access be granted to 8 documents by consent, and (b) that access be granted to an additional 13 documents, some redacted ([1], [12]-[13]).
RMB, SunRice and Forbidden Foods each filed a notice of appeal against the decision in respect of the 13 documents. Those documents included (a) SunRice’s responses to RMB’s requests for information for the years 2013-2017 (the Reporting Letters), and (b) reports provided to RMB by Grant Thornton following its verification of certain performance indicators reported by SunRice to RMB for those years (the Independent Verification Reports) ([1], [14]-[18], [143]).
RMB sought an order that Forbidden Foods be refused access to all but one of the 13 subject documents, while Forbidden Foods sought an order that it be granted access to each of the 13 documents in whole ([4]).
Held (allowing both appeals, and remitting the decision for reconsideration by the Tribunal as originally constituted):
Whether SunRice had a right to bring its own appeal – NO
(i) Whether SunRice had a right to bring its own appeal depended on whether it was a party or was required to be treated as a party in the Tribunal proceedings below (NCAT Act, s 80(1); Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 29(b), (e)) ([25], [53]).
(ii) Although SunRice’s participation in the proceedings below was substantial, it took part in the proceedings pursuant to the right to appear and be heard provided for in s 104(3) of the GIPA Act, confirmed by cl 9(4)(c) of Sch 3 to the NCAT Act ([60], [63]-[64]).
(iii) In the Appeal Panel’s view, the exercise of the right to appear and be heard conferred by s 104 does not confer automatic party status – rather, party status is conferred by order of the Tribunal under s 44 of the NCAT Act ([58]).
(iv) The proceedings below, involving an exercise of the right under s 104, could be distinguished from cases such as Tran v R [2017] NSWCCA 93, which SunRice and RMB relied on as authority for a broad interpretation of the word “party” in r 29(b) of the NCAT Rules ([34], [40], [61]-[63]).
(v) The Appeal Panel agreed with comments of previous Appeal Panels in CBL v Sydney Water Corporation [2016] NSWCATAD 287 and Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 87 (Scenic) that where a person is only exercising its right to “appear and be heard” under s 104(3), it does not have the right to appeal the Tribunal’s administrative review decision ([65]).
(vi) The Appeal Panel also noted other provisions of the NCAT Act, such as cl 21(5) of Sch 5, which in contrast to s 104(3) and cl 9(4) of Sch 3, specifically provide that a person who appears at a hearing is “taken to be a party” ([97]).
(vii) Accordingly, the Appeal Panel did not consider that SunRice could properly be characterised as a party in the Tribunal proceedings below for the purposes of NCAT internal appeal rights under s 80 ([74]).
Whether it had a right to appear in RMB’s appeal, pursuant to s 104 of the GIPA Act – NO
(viii) While the Appeal Panel conceded that the meaning of s 104(3) of the GIPA Act is to some extent ambiguous, it concluded that the right of appearance under s 104(3) does not extend to internal appeals ([83]).
(ix) The Appeal Panel was required to read s 104(3) in the context of s 104 as a whole, and in the context of the role of third parties in the entire legislative scheme ([85]).
(x) Considered in isolation, the text of s 104(3) could potentially be read broadly to encompass a right of appearance in an internal appeal from an administrative review. However, when read in context with s 104(1) and (2), it is clear that s 104(3) does not provide a right of appearance in an appeal against the Tribunal’s decision in respect of an administrative review application ([87]-[88]).
(xi) The bracketed words in s 104(1) and (2) must be given “work” to do –those words unambiguously confer a right of appearance on the Information and Privacy Commissioners in internal NCAT appeals, and are not repeated in s 104(3). Construing s 104(3) as conferring a right to appear in an internal appeal would render the bracketed words in subs (1) and (2) otiose ([88]).
(xii) This construction is reinforced by cl 9(4) of Sch 3 to the NCAT Act, which deals specifically with rights of appearance in GIPA administrative review proceedings, and does not encompass appeals from review decisions (as it is restricted to “proceedings for the exercise of a Division function”) ([89]-[90]).
(xiii) This limited construction of s 104(3) was also supported by extrinsic materials to which the Appeal Panel had regard, including draft versions of the bill which introduced the GIPA Act. However, the Appeal Panel did not rely on this extrinsic material in reaching its view ([93]-[96]).
(xiv) The Appeal Panel acknowledged that its construction of s 104(3) differed from the construction applied in Scenic, and noted that it had the benefit of comprehensive arguments put by legal representatives, which persuaded it to depart from that earlier authority ([98]).
Whether SunRice should be joined as a party to RMB’s appeal under s 44 of the NCAT Act – YES
(xv) Based on the provisions in s 44(1) and (2) of the NCAT Act, multiple Appeal Panel decisions in NCAT have accepted that a person should be joined as a party if the Appeal Panel considers that joinder is “proper” or “necessary” ([104]).
(xvi) When deciding whether to exercise the discretion to join a person as a party, it is relevant to consider: the nature and extent of the review being undertaken; the position or interest of the party to be joined; the circumstances of the case; whether prejudice would be caused by joinder, such as delay to proceedings; and the guiding principle of the NCAT Act, to facilitate the “just, quick and cheap resolution of the real issues in the proceedings” ([105]).
(xvii) The Appeal Panel was satisfied that SunRice was aggrieved by the decision under review; that SunRice was best placed to identify how its business interests could be prejudiced by disclosure of relevant information; that SunRice played an active role in the proceedings below; that SunRice’s participation could assist the Appeal Panel in adjudicating the real issues in dispute; and that allowing SunRice to participate would not prejudice Forbidden Foods, by way of undue delay or additional cost to the resolution of the proceedings ([110]-[113]).
(xviii) Accordingly, it was satisfied that joining SunRice was consistent with the guiding principle; that SunRice was a “proper or necessary party”, in that its interests were affected by the decision below, it had a material interest in the outcome of the appeal, and its joinder was necessary to determine the issues in dispute; and that SunRice should therefore be joined as a party to RMB’s appeal ([114]-[118]).
Whether the appeal and/or cross-appeal should be allowed – YES, in part
(xix) The Appeal Panel was satisfied that the Tribunal erred by:
a. failing to consider RMB’s submission that disclosure of the Independent Verification Reports could prejudice the supply of confidential information by SunRice to RMB, and thus prejudice the effective exercise of RMB’s functions. While the Tribunal referred to this submission in its reasons, it did not make any findings about whether prejudice could result from disclosure of the Independent Verification Reports. Nor, in its reasons for finding that cl 1(d) in the Table to s 14 of the GIPA Act did not apply to those reports, did the Tribunal make any express reference to the submission. From this, it could be inferred that, in reaching that finding, the Tribunal did not consider the submission ([163]-[183]).
b. failing to give adequate reasons for its decision to order the disclosure of the Independent Verification Reports in their entirety, where those documents contained information that was the same or similar to information in the Reporting Letters which the Tribunal ordered not to be disclosed. The Tribunal did not explain why it gave “moderate weight” to considerations in cll 4(c) and (d) as they related to redacted parts of the Reporting Letters, but gave “modest weight” to the same considerations with respect to the same or similar material in other parts of the Reporting Letters and the Independent Verification Reports ([224]-[229]).
(xx) However, the Tribunal did not err by:
c. making conflicting and/or internally inconsistent findings as to the prejudice to RMB’s functions that could reasonably be expected to result from disclosure of information, as the Appeal Panel did not consider that the Tribunal’s findings on this issue were inconsistent ([185]-[189]).
d. failing to make a finding about RMB’s submission about the “level of detail in the confidential information contained in the Independent Verification Reports”. Once the Tribunal had found that the commercial sensitivity of that information had diminished, this matter became “subsumed in findings of greater generality” such that “it [was] unnecessary to make a finding”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 ([171], [200]-[208]).
e. failing to give any or adequate reasons as to the weight it gave to public interest considerations against disclosure “in relation to particular occurrences or items of information”. Further, the Appeal Panel rejected the appellants’ complaint regarding the Tribunal’s use of the words “modest”, “moderate”, “significant” and “very significant”. These are plain English words whose meaning is clear, and the Tribunal’s use of them to indicate the relative weight attributed to public interest considerations was entirely orthodox ([231]-[242]).
f. making conflicting and/or internally inconsistent findings as to the “personal factors of the application”. This ground appeared to rest on the assumption that, where a decision-maker identifies more than one personal factor of an application, they are required by s 55 of the GIPA Act to evaluate whether or not, assessed overall, the identified factors favour disclosure. No authority was cited for that proposition, nor in the Appeal Panel’s view was it supported by the text, context or statutory scheme in which s 55 operates. The Tribunal did not misapply s 55 ([243]-[249])
(xxi) The Appeal Panel also upheld Forbidden Foods’ ground of appeal, in which it contended that the Tribunal misapplied the public interest test in s 13 of the GIPA Act by ordering the redaction of information in the Reporting Letters, where the Tribunal itself stated that the considerations against disclosure were of “moderate” weight, and those in favour of disclosure were “significant”. This was an obvious error ([267]-[271]).
(xxii) Accordingly, the Appeal Panel decided to allow the appeal in part, and remit specific questions to the Tribunal as originally constituted, relating to the inconsistencies in the Tribunal’s findings regarding similar information contained in the Reporting Letters and Independent Verification Letters, and the weight to be attributed to the public interest considerations against disclosure in s 14, in particular, cl (1)(c), (d) and (f) ([281]).
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| Consumer and Commercial Division - Home Building
M Harrowell, Deputy President; S Higgins, Senior Member
In sum: The Appeal Panel dismissed an appeal from two decisions in the Consumer and Commercial Division, holding that the Tribunal (a) did not err in concluding that it had the power under s 63 of the NCAT Act to amend the name of the appellant on the money order after it was made, and that it was appropriate to do so, and (b) did not fail to properly apply s 48MA of the Home Building Act 1989 (NSW) (the HB Act), which is not a mandatory provision, but operates by way of a presumption, such that the Tribunal retained a discretion as to what orders to make and it was necessary to show House v King error in the Tribunal’s reasoning.
Facts: The proceedings below were commenced by Mr Adams and Ms Noble (the homeowners), in respect of residential building works carried out at their property – specifically, the installation of a faulty septic tank. The respondent named in the application was “Dixon Homes Pty Ltd”, however, the ABN and contractor’s licence number was that of Dixonbuild Pty Ltd (the appellant/Dixonbuild). Further, Dixonbuild Pty Ltd was the name on the contract between the parties ([3]-[7], [103]).
It was common ground that the septic system installed was defective. The dispute concerned whether a work order or a money order should be made, and whether the existing system should be replaced with the same system, or a system of a different brand ([122]).
The Tribunal ordered that “Dixon Homes Pty Ltd” pay $99,350 to the homeowners (the money order) ([6]).
Following this, it emerged that “Dixon Homes Pty Ltd” had been deregistered as a company in 1992. The homeowners applied to the Tribunal under ss 53 and 63 of the NCAT Act to amend the name of the respondent on the money order to “Dixon Build Pty Ltd” ([8]).
Deciding this application on the papers, the Tribunal determined that it had power to amend the name pursuant to s 63 of the NCAT Act, and directed the Registrar to amend the name “Dixon Homes Pty Ltd” to “Dixon Build Pty Ltd” (the amendment order) ([9]).
Dixonbuild paid the required amount of $99,350 to the homeowners, but later filed a Notice of Appeal seeking to challenge both the money order and the amendment order ([10], [13]).
Held (amending the name of the appellant from “Dixon Build Pty Ltd” to “Dixonbuild Pty Ltd”, refusing an extension of time, and dismissing the appeal):
Extension of time to appeal amendment order – GRANTED
(i) The Appeal Panel granted an extension of time for Dixonbuild to appeal the amendment order, on the basis that the delay was not excessive and included the Christmas break; the appeal raised a novel question of general importance concerning the scope of power to correct errors under s 63; and if the amendment order could not be made, it should be set aside and the original application dismissed ([79]).
Appeal against amendment order – DISMISSED
Scope of Tribunal’s power to correct error under s 63 of the NCAT Act
(i) Section 63 of the NCAT Act allows for the text of a decision to be altered where there is an “obvious error”, including a clerical mistake or an accidental slip or omission, a defect in form, or an inconsistency between the stated decision and state reasons ([81]-[82]).
(ii) In interpreting s 63, the Tribunal must have regard to the guiding principle in s 36(1), to facilitate the “just, quick and cheap resolution of the real issues in the proceedings” ([83]-[85]).
(iii) Having regard to various Court of Appeal and Federal Court authorities (citations omitted), the Appeal Panel held that s 63 operates to permit amendment to an order in circumstances where ([86]-[95], [99]):
a. there is an obvious error in the order;
b. even if the Tribunal was unaware of the error at the time the order was made, the error arises from facts which, if known to the Tribunal, would have caused it to immediately make an order correcting the error;
c. correcting the error does not involve determining the issues in dispute;
d. correction of the error will not be contrary to other orders made and/or any reasons given in respect of the original orders, unless those other orders and reasons also require correction for obvious error; and
e. the amendment will not give rise to any injustice on the party affected (e.g. where a party is defined a reasonable opportunity to be heard on the substantive dispute to which the error relates, or has subsequently acted to their detriment in reliance on the original decision).
(iv) The Appeal Panel rejected Dixonbuild’s argument that the decision of the Appeal Panel in Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146 determined that the slip rule could not be used to substitute a new party ([97]).
(v) In this case, it was clear that Dixonbuild Pty Ltd was a party to the home building contract with the homeowners; that the homeowners had incorrectly named “Dixon Homes Pty Ltd” as the respondent on their application to the Tribunal; that Dixonbuild knew about the Tribunal proceedings and instructed a lawyer to act on its behalf in them; that the real issue in dispute was not the identity of the builder, but rather whether a money order or a work order should be made; and that there was no prejudice to Dixonbuild in making the amendment ([103]-[104]).
(vi) Accordingly, the Tribunal was correct to conclude that it had power to amend the name of the builder on the money order, and that it was appropriate to do so ([106]).
(vii) The Appeal Panel also noted that the Tribunal had mistakenly amended the name of the builder to “Dixon Build Pty Ltd”, and ordered that this be amended again to reflect the correct name, “Dixonbuild Pty Ltd” ([108]).
Extension of time to appeal money order – NOT GRANTED
When was the appellant “notified” of the decision about the money order?
(viii) Contrary to Dixonbuild’s submission, for the purposes of r 25(4)(c) of the NCAT Rules, Dixonbuild “was notified of the decision” about the money order on the date the original money order was made, and not the date the amendment order was made. The amendment order had the consequence of altering the text of the money order on and from the date of the original decision, and did not change the substantive obligation to pay ([112]-[113]).
(ix) Accordingly, an extension of time to appeal against the money order was required ([114]).
(x) The Appeal Panel considered a number of matters as weighing against granting an extension of time, including that Dixonbuild must have known of its rights to appeal in September 2019 and had been contemplating an appeal since that time; that no explanation was given for why a Notice of Appeal was not filed immediately, or at least within 28 days after the amendment order; and that an extension of time would likely prejudice the homeowners, in circumstances where no stay of the money order was sought, the money was already paid, and rectification work already completed ([118], [132]).
(xi) In addition, leave to rely on fresh evidence, which was reasonably available to Dixonbuild at first instance, was denied ([121]).
Whether the Tribunal failed to properly apply s 48MA of the HB Act; whether it erred in its exercise of discretion
(xii) Section 48MA of the HB Act requires the Tribunal, in determining a claim relating to defect residential building work, to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome ([6]).
(xiii) The section is not mandatory, but is a factor to be taken into account in the exercise of the Tribunal’s discretion about what orders it should make to resolve a building claim. Being expressed as a “preferred outcome”, it operates in the manner of a presumption. That is, unless the facts of a particular case make it inappropriate to order rectification by the responsible party, an order should be made in those terms: Leung v Alexakis [2018] NSWCATAP 11 ([125]).
(xiv) As the Tribunal’s decision not to make a work order involved the exercise of a discretion, Dixonbuild needed to show an error of the type in House v King [1936] NCA 40 ([127]).
(xv) While the Tribunal’s reasons for not making a work order were brief, the Appeal Panel thought they were sufficient ([128]).
(xvi) The Appeal Panel was not satisfied that the Tribunal’s exercise of discretion may have miscarried, particularly as Dixonbuild did not provide any evidence to support its contention that a work order should have been made ([128]-[131]).
(xvii) Further, Dixonbuild’s argument that the Tribunal erred in accepting an amended quotation, rather than an earlier one, as the basis for the money order, had little or no prospects of success ([133]).
(xviii) The only evidence about what it would cost to rectify the defects was provided in quotations from another supplier (other than Dixonbuild), and in oral evidence from an employee of that supplier, who was cross-examined by Dixonbuild’s lawyer. While it may have been true that this witness was not an independent expert, there was no suggestion that the Tribunal accepted his evidence as such; no suggestion that he was not a third party service provider able to provide a replacement tank, or that his engagement was not at arm’s length; and no reason to doubt his evidence concerning the cost of the work. Dixonbuild had the opportunity to provide evidence in reply, or to request an adjournment to deal with the amended quotation, but did not do so ([138]-[141]).
(xix) There was a proper basis for accepting the amended quotation as evidence of the reasonable cost of rectifying the defective septic system ([142]).
Whether events after the Tribunal’s decision could be taken into account in determining whether an error was made – NO
(xx) Once the Tribunal had made its award by determining the reasonable cost of rectifying the defective work, based on estimations by appropriately qualified experts, the fact that a greater or lesser amount was subsequently spent on rectification works (e.g. if a cheaper method of rectification was later found) was not a ground for review of the money order ([144]-[147]).
(xxi) The extension of time to appeal against the money order was refused, as there were no real prospects of success, and the appeal was dismissed ([143], [148]-[149]).
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| Consumer and Commercial Division - Strata
S Westgarth, Deputy President; M Gracie, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division, on the basis that the Tribunal below erred in failing to order that the owners corporation provide access to certain records sought by a lot owner. The Tribunal should have ordered under s 188 of the Strata Schemes Management Act 2015 (NSW) (the SSMA) that the records be supplied to the lot owner, in circumstances where the owners corporation was required to produce them under multiple provisions in s 182 of the SSMA. The concern that the records contained private information of other lot owners was not a sufficient reason not to make such an order.
Facts: The appellant, Mr Walker, is a lot owner in a strata scheme operated by the respondent owners corporation. Mr Walker applied to the Tribunal seeking orders under s 188 of the SSMA for the owners corporation to produce certain financial records with respect to levies paid for the years 2018-19 and 2019-20 ([2]).
The Tribunal concluded that Mr Walker was not entitled to receive the “detailed transaction list for levies paid by each lot owner” (the levy register), and that, “as a matter of discretion”, the application under s 188 should be rejected, because ([4]-[6]):
- the owners corporation had already provided accounting records to Mr Walker, which were “sufficient to satisfy [his] enquiries”;
- there was no evidence the owners corporation had “wrongfully failed to make documents available” to Mr Walker;
- as a “matter of privacy for all lot owners”, detailed records for each lot were not required to be made available; and
- the records sought were not requirements for financial statements pursuant to s 93 of the SSMA.
Mr Walker appealed, including on the basis that the Tribunal “incorrectly used” s 93 to dismiss his application, and did not have proper regard to ss 182 and 188 of the SSMA ([11], [19]).
Held (allowing the appeal, setting aside the dismissal order below, and substituting an order that the owners corporation make the levy register available to Mr Walker for inspection):
(i) Key provisions of the SSMA and the Strata Schemes Management Regulation 2016 (NSW) (the SSM Regulation) for the purpose of this appeal were as follows ([23]-[28]):
a. SSMA, s 92, which provides that the owners corporation must prepare financial statements and statements of key financial information.
b. SSMA, ss 93 and 94, which set out the requirements for financial statements and statements of key financial information, respectively.
c. SSMA, s 96, which requires the owners corporation to keep accounting records, and provides that the regulations may prescribe the types of accounting records required to be kept.
d. SSMA, s 180, which requires the owners corporation to retain certain records for 7 years, or a different period prescribed by the regulations.
e. SSMA, s 182, which provides that a lot owner may request to inspect, and the owners corporation must make available for inspection, certain records held by the owners corporation, including records required to be kept under Part 10 of the SSMA; records in the custody or under the control of the owners corporation; and, in circumstances where there is a strata managing agent, records prescribed by the regulations.
f. SSM Regulation, reg 22, which sets out accounting records to be kept for the purpose of s 96(4), including “a levy register”.
g. SSM Regulation, reg 23, which sets out the information that should be included in a levy register.
h. SSM Regulation, reg 42, which requires that, for the purposes of s 182(3)(k), the owners corporation must make available for inspection the accounting records and other records relating to the strata scheme that are kept by the strata managing agent.
(ii) The Tribunal misdirected itself by incorrectly characterising the issue before it (i.e. whether Mr Walker was entitled to the records sought) by reference to s 93 of the SSMA, and in finding that the records sought were “not requirements for financial statements pursuant to s 93” ([32]).
(iii) Accordingly, the appeal raised a question of law, and leave to appeal was not required ([33]).
(iv) The essential question was whether the documents sought (i.e. the levy register) were documents which the owners corporation was required to make available for inspection under s 182 ([39]).
(v) The Appeal Panel held that the levy register was “caught” by multiple provisions in s 182 ([40]):
a. s 182(3)(b), because it is a document required to be kept under Part 10 of the SSMA, namely s 180(1)(c), which requires the retention of “financial statements and accounting records”, including the accounting records prescribed by the regulations in accordance with s 96(4). That section leads to the requirement to keep a levy register, as stipulated in regs 22 and 23;
b. s 182(3)(j), because it is a “record or document…. under the control of the owners corporation”. Although the levy register was held by the strata manager, there was no evidence that the owners corporation could not call on the strata manager to produce it;
c. s 182(3)(k), because the duties of the owners corporation under s 182(3) were delegated to the strata manager, and the levy register is part of the records prescribed by the SSM Regulation.
(vi) Further, the Appeal Panel found there was no issue of “privacy” which derogated from the statutory right of an owner to access financial information and accounting records where such a right is expressly provided for under the SSMA. The legislation permits inspection of the levy register, and to that extent, Parliament has indicated that information contained in the levy register is not protected by considerations of privacy ([42], [49]).
(vii) The Appeal Panel also considered whether, given that a levy register is a document which “must” be made available for inspection by the owners corporation under s 182, it follows that the Tribunal must make an order for inspection ([44]).
(viii) Section 188(1) provides that the Tribunal “may” order an owners corporation to supply information to an applicant if the Tribunal considers that the information has been “wrongfully withheld” and the applicant is “entitled” to it under the SSMA. Section 188(2) provides that the Tribunal “may” order an owners corporation to supply a record or document in similar circumstances ([45]).
(ix) The word “may” suggests that the Tribunal may refuse to make an order under s 188(1) or (2) in some circumstances. However, the Appeal Panel held that, absent a reason to relieve the owners corporation of the mandatory obligation to give access under s 182, the Tribunal should make an order under s 188(1) or (2) ([46]).
(x) In this case, the reasons given by the Tribunal for not making an order under s 188 – that the documents already provided to Mr Walker were sufficient, and that the levy register should be withheld as a matter of privacy – were not sufficient ([47]-[49]).
(xi) Accordingly, the Appeal Panel upheld the appeal, and having regard to the guiding principle in s 36 of the NCAT Act, decided not to remit the matter to the Tribunal. Instead, it set aside the decision below, and ordered under s 188(2) of the SSMA that the owners corporation make the levy register available to Mr Walker for inspection within 21 days ([53]-[55]).
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| Consumer and Commercial Division - Strata
T Simon, Principal Member; G Curtin SC, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division, on the basis that the Tribunal below erred in finding that by-law 32, a purported “common property rights by-law” under s 142(b) of the SSMA, entitled the respondents under s 111(b) to carry out work on common property without authorisation under s 108 of the SSMA. The Appeal Panel’s decision turned on its limited construction of the phrase “special privileges” in s 142(b), which it found did not extend to exempting lot-owners from compliance with the requirements of the SSMA (including the authorisation requirements in s 108). This was in contrast to the provisions in ss 109 and 110, which expressly exempt lot-owners from compliance with s 108 for certain types of common property work.
Facts: The first respondent, B & G Trading Pty Ltd, is the former owner of Lot 148 in the strata plan operated by the appellant owners corporation. The second and third respondents are the current owner and lessee ([11]).
In 2017, the respondents planned to fit out Lot 148 for use as offices. As part of that work, the respondents believed they were entitled to carry out work on nearby or adjacent common property without the consent of the owners corporation, pursuant to the terms of by-law 32 ([12]). Part of that by-law provides as follows ([21], [24]):
32 Special privilege for Commercial Lot 1
- The owner of Commercial Lot 1 [defined as Lot 148] has the special privilege to carry out works on the lot without first obtaining the consent of the owners corporation to the alteration of the common property in connection with those works.
The fit-out and common property work was carried out between December 2017 and August 2018 ([13]). The owners corporation commenced proceedings in the Tribunal in March 2018, seeking orders that the respondents remove the work done to the common property, and restore the common property to its previous state ([17]).
The Tribunal below held that the work to the common property was authorised by by-law 32 ([19], [39]). In doing so, the Tribunal held that by-law 32 was a “common property rights by-law” conferring “special privileges” on the respondents as provided for in s 142(b) of the SSMA, thus authorising the respondents to “carry out work on the common property” as provided for in s 111(b) of the SSMA ([42]).
The Tribunal also said it was not persuaded that by-law 32 lacked sufficient specificity to be inconsistent with s 108(2), which provides that action to “alter” or “erect a new structure” on common property can be authorised “only if a special resolution” is passed by the owners corporation “specifically authoris[ing]” the action proposed ([50]).
The owners corporation appealed, arguing (amongst other grounds) that the Tribunal erred in finding that by-law 32 was a by-law of the kind described in s 142(b), and in finding that by-law 32 was not inconsistent with s 108 ([54]).
Held (allowing the appeal, setting aside the decision below, and substituting an order that the common property be restored):
Relevant statutory provisions
(i) In contrast to the provisions in the previous Strata Schemes Management Act 1996 (NSW), the introduction of the SSMA created three tiers of common property work, being alteration, addition to, or erection of new structures on common property (s 108), cosmetic work (s 109), and minor renovations (s 110) ([95], [100]-[101], [142]).
(ii) Section 108(2) provides that a lot owner may add to, alter, or erect a new structure on common property for the purpose of improving or enhancing the common property only if a special resolution has been passed by the owners corporation specifically authorising the taking of that particular action ([26]).
(iii) In contrast, s 111 provides that a lot-owner “must not carry out work on the common property” unless authorised in one of three ways, being (a) under Part 6 of the SSMA, (b) under a by-law made under Part 6 or a common property rights by-law, or (c) by a special resolution or another manner authorised by the by-laws ([27]).
Construction of the phrase “special privileges” in ss 111 and 142
(iv) The expression “special privileges” in s 142(2) does not, on its proper construction, include exemption from the requirements of the SSMA. Rather, that phrase should be “read down” based on the language in s 142(2)(a) and (b) to mean “use, enjoyment and licences or other things which may be [of a similar kind to] those matters”, and not to extend to exemptions from statutory obligations or restrictions (such as that in s 108) ([118], [125], [139]).
a. Sections 109 and 110 expressly provide that s 108 does not apply to the work referred to in those sections. Neither s 111(b) nor s 142 include any equivalent provision ([120]).
b. From the detailed carve outs in ss 109 and 110, it can be seen that Parliament applied its mind in specific detail to work to which the authorisation requirements in s 108 do not apply. The same cannot be said for s 111(b) ([102], [105]).
c. There is also no equivalent requirement in ss 111(b) or 142 to ss 109(3) and 110(5) that any damage caused to common property by carrying out authorised work must be repaired, and that the work must be carried out in a competent and proper manner ([135]).
d. Against the background of ss 109 and 110 being detailed carve outs from s 108, and the particular provisions in s 111, the Appeal Panel did not consider that s 111(b) was intended to provide a further carve out from s 108 by way of special privileges conferred on a lot owner by a common property rights by-law ([117]).
e. If the respondents’ construction of “special privileges” were correct, the type of work that could be authorised under a common property rights by-law would be unconstrained by any statutory limits (cf the detailed descriptions in ss 109 and 110). This would seem an odd result ([119]).
f. Even if a common property rights by-law was put forward, and required a special resolution for it to become a by-law, there is no statutory requirement that the by-law specify what the work would be (cf s 108(2)) ([124]).
g. Section 108 has the same purpose as its predecessor, s 65A of the Strata Schemes Management Act 1996 – namely that its voting requirements serve a public policy function of protecting the beneficial proprietary rights of lot owners in common property (see Stolfa v The Owners - Strata Plan 4366 [2009] NSWSC 589, per Brereton J). That policy is replicated in the SSMA, now with the specific and detailed carve outs in ss 109 and 110. It is not likely that the legislature would allow for unspecified and undetailed carve outs by way of a common property rights by-law in the absence of express words to that effect ([121]-[122], [137]).
h. While s 111(b) clearly authorises some work to common property under a common property rights by-law, the general purpose and policy of these provisions, their consistency and fairness, seems to point in the direction of that work being confined to maintenance and repair work, which must be expressly provided for in the by-law ([127]).
Potential conflict between ss 108 and 111
(v) On their face, and if the respondent’s contention about s 111(b) were correct, s 108 and s 111(b) combined with s 142(b) would be in conflict. One says that work to common property can “only” be done if a special resolution is passed, and the other says that an owner “must not” carry out work on the common property unless authorised by (in this case) a common property rights by-law ([138]).
(vi) The Appeal Panel’s view, based on the principles of harmonious statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, was that s 108 is the “leading provision”, and s 111 is the “subordinate provision which must give way to the requirements of s 108” ([139]-[140]).
(vii) The Appeal Panel concluded that by-law 32 does not confer the “special privilege” contended for by the respondents. Therefore, the respondents were not authorised under s 111(b) to carry out the work to the common property that they did ([143]).
(viii) If wrong about this conclusion, the Appeal Panel also said that a special privilege amounting to an exemption from the requirements of s 108(2) would be inconsistent with the SSMA, and therefore of no force or effect ([144]).
(ix) Accordingly, the Appeal Panel allowed the appeal, set aside the Tribunal’s orders below, and substituted an order that the respondents restore the common property to the condition it was in prior to the unauthorised works ([158]).
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| | | Decision of: G Curtin SC, Senior Member; J McAteer Sc, Senior Member
Catchwords: APPEALS – constructive failure to exercise jurisdiction – absence of a necessary finding of fact – Appeal Panel in as good a position as the Tribunal to make that finding of fact – consequential variation of the Tribunal’s orders
EVIDENCE — interpretation of photographs — whether photographs may be used as substantive evidence or merely demonstrative evidence – restraint on use of photographs |
| Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; A Britton, Principal Member
Catchwords: APPEALS – government information – access application – appeals from decision that government information be disclosed – public interest considerations – whether public interest considerations applied inconsistently – whether Tribunal misapplied s 13 of the Government Information (Public Access) Act 2009
PROCEDURE – standing of third party to bring an appeal – whether “party” in proceedings below –whether “intervenor” in proceedings below – meaning of “party” in s 80(1) of Civil and Administrative Tribunal Act 2013
PROCEDURE – parties on appeal – joinder – principles as to joinder of parties – application of s 44(1) of Civil and Administrative Tribunal Act 2013 – whether joinder necessary or proper – whether interests of applicant affected by orders made below – other factors considered – application for joinder granted
PROCEDURE – right to appear and be heard – whether third party has statutory entitlement to appear and be heard under s 104(3) of the Government Information (Public Access) Act 2009 – STATUTORY CONSTRUCTION – whether s 104(3) applies to internal appeals
PROCEDURE – role of Information Commissioner under s 104(1) of Government Information (Public Access) Act 2009 – whether limited to principles of statutory construction, applicable law, policies and guidelines
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| Consumer and Commercial Division - Commercial
Decision of: A Bell SC, Senior Member; G Sarginson, Senior Member
Catchwords: APPEALS---Retail lease---Unconscionable conduct---Outgoings under the lease---After hours air-conditioning charges---Non-disclosure prior to execution of lease---Whether conduct of lessor unconscionable
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| Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Deputy President; K Ransome, Senior Member
Catchwords: LEASES AND TENANCIES – Retail lease – covenant by landlord to maintain building in a sound structural condition – whether landlord’s obligation to maintain building in a sound structural condition includes an obligation to rectify any deficiencies in the fire sprinkler system – whether implied term in lease of non-derogation of grant – whether these terms are conditions or intermediate or innominate terms breach of which might entitle the tenant to terminate the lease – tenant requiring the landlord to rectify deficiencies in fire sprinkler system prior to conducting its fit out – non-compliance of sprinkler system with Australian Standards and Building Code of Australia– landlord refusing to upgrade base building pumps – availability of a fire engineered solution as an alternative to upgrading the building’s sprinkler pumps – whether landlord’s refusal to carry out work to the building’s sprinkler pumps constitutes a repudiation of the lease – validity of termination notice issued by tenant
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| | Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 Administrative and Equal Opportunity Division
Decision of: L Pearson, Principal Member; J Lucy, Senior Member
Catchwords: APPEAL - government information – access application – whether information “excluded information” – whether consent to disclosure
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| Consumer and Commercial Division - Community Schemes
Decision of: The Hon F Marks, Principal Member; M Gracie, Senior Member
Catchwords: STRATA TITLE – appeal from order of Tribunal ordering repayment of contributions for cost of heating water not used by some lot owners - held s 232 and other provisions of the Strata Schemes Management Act 2015 did not empower order - appeal allowed
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| Consumer and Commercial Division - Tenancy
Decision of: P Durack SC, Senior Member; P H Molony, Senior Member
Catchwords: APPEALS – residential tenancy- water charges paid by tenant when not required to pay – claim for refund - quantum to be repaid – adequacy of reasons – redetermination required
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| Consumer and Commercial Division - Social Housing
Decision of: Dr R Dubler SC, Senior Member; L Wilson, Senior Member
Catchwords: LAND LAW – residential tenancy – whether the Tribunal erred in its consideration of the discretionary provisions of s 91 and s 154E of the Residential Tenancies Act 2010 – whether the Tribunal erred in concluding that there are no exceptional circumstances before the Tribunal justifying a period of suspension beyond the maximum 28 day period pursuant to s 154G of the Residential Tenancies Act 2010 – whether the application to terminate the tenancy was made out of time and whether the Tribunal was required to consider whether the application was within time but had failed to do so – whether the Tribunal unreasonably concluded that the appellant would not suffer “unfair hardship” if the tenancy was terminated – alternatively whether that finding was against the weight of the evidence
APPEAL – whether the Tribunal failed to afford the appellant procedural fairness
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| Administrative and Equal Opportunity Division
Decision of: S Westgarth, Deputy President; J Kearney, Senior Member
Catchwords: APPEAL – administrative decision under Administrative Decisions Review Act – no issue of principle
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| Decision of: M Harrowell, Deputy President; S Higgins, Senior Member
Catchwords: PRACTICE AND PROCEDURE – s 63 of the Civil and Administrative Tribunal Act – power to correct error in decision – scope of power – principles to be applied – power to correct name in final order.
CONTRACT LAW – residential building work – breach of statutory warranties – s 48MA of the Home Building Act 1989 – work order the preferred outcome – Tribunal declining to make a work order
DAMAGES – breach of contract – single quotation provided – whether award is reasonable and appropriate
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| Decision of: L Pearson, Principal Member; D Robertson, Senior Member
Catchwords: ADMINISTRATIVE LAW – Hearing rule – Procedural fairness - Failure to identify whether the appellant’s director’s statements and assertions during the hearing were to be treated as evidence – Failure to accord opportunity for statements and assertions to be treated as evidence
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| Consumer and Commercial Division - Strata Decision of: S Westgarth, Deputy President; M Gracie, Senior Member
Catchwords: APPEAL — leave to appeal from decision of Consumer and Commercial Division of Tribunal
STRATA TITLE - order of Tribunal refusing inspection of financial information and accounting records of Owners Corporation - levies - levy register - privacy - exercise of discretion by Tribunal to refuse inspection of records - application of s 182 Strata Schemes Management Act 2015 - inspection of levy register granted
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| Consumer and Commercial Division - Consumer Claim
Decision of: A P Coleman SC, Senior Member; J Lonsdale, Senior Member
Catchwords: CONSUMER CLAIM – shipping contract; compensation JURISDICTION – federal matter, maritime claim
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; M Harrowell, Deputy President
Catchwords: LAND LAW – Strata title – contravention of by law – failure to comply with notice to remove animals – order for removal under s 157 of the Strata Schemes Management Act 2015
PRACTICE AND PROCEDURE – costs – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances
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| Consumer and Commercial Division - Consumer Claim
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member
Catchwords: APPEALS – professional negligence claim against insurance broker-decision did not address the elements of the claim – error of law – extension of time in which to bring the appeal
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| Decision of: The Hon F Marks, Principal Member; D Robertson, Senior Member
Catchwords: APPEALS – error of law – incorrect test for determining unconscionable conduct under the Australian Consumer Law (NSW)
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; M Harrowell, Deputy President; L Wilson, Senior Member
Catchwords: COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – complexity of proceedings – issue not previously decided by Appeal Panel – overruling of previous first instance decision – costs of non-party application to be joined in appeal
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| Consumer and Commercial Division - Strata
Decision of: Armstrong J, President; M Harrowell, Deputy President
Catchwords: COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – special circumstances – statutory construction – complexity of proceedings – issue not previously decided by Appeal Panel – overruling of previous first instance decisions
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member
Catchwords: RESIDENTIAL TENANCY – termination – termination by consent - abandonment – break lease fee
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| Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; A Britton, Principal Member
Catchwords: ADMINISTRATIVE LAW – administrative review – hotel licence – refusal of application to vary an ongoing extended trading authorisation – whether decision administratively reviewable
STATUTORY INTERPRETATION – meaning of cl 7(b) of the Gaming and Liquor Administration Regulation 2016 –– whether application to vary an extended trading authorisation is an “application for an ongoing extended trading authorisation in relation to a licence … that would result in trading after midnight”
PRECEDENT – Supreme Court obiter dicta –– meaning of “seriously considered” dicta
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| Guardianship Division
Decision of: A Britton, Principal Member; J Kearney, Senior Member; M Spencer, General Member
Catchwords: APPEAL — principles applying to granting leave to appeal from decision made by Guardianship Division of the NSW Civil and Administrative Tribunal
GUARDIANSHIP — review of enduring guardianship appointment — exercise of the power under 6K of the Guardianship Act 1987 (NSW) to treat a request for review of the appointment of an enduring guardian as an application for a guardianship order
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| Consumer and Commercial Division - Strata
Decision of: T Simon, Principal Member; G Curtin SC, Senior Member
Catchwords: LAND LAW – strata title – by-laws – whether by-law was a common property rights by-law – whether “special privileges” in s 142(2) of the Strata Schemes Management Act 2015 (NSW) includes purported exemption from compliance with the obligations imposed by s 108 – by-law cannot provide exemption from obligations imposed by s 108 – s 111 of the Strata Schemes Management Act 2015 (NSW) subordinate to s 108 - difference between “validity” and “of no force or effect”
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| Administrative and Equal Opportunity Division
Decision of: Armstrong J, President; M Harrowell, Deputy President; A Suthers, Principal Member
Catchwords: APPEAL – Jurisdiction – Federal Matter – Procedural irregularity – Leave to extend time for filing Notice of Appeal – Appeal lodged years out of time – Leave refused
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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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