| | | | | NCAT Appeal Panel Decisions Digest Issue 8 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 August 2021: - Torpey v Stewart [2021] NSWCATAP 248 - In which the Appeal Panel allowed an appeal in part from a decision of the Consumer and Commercial Division of the Tribunal. The Appeal Panel set aside the Tribunal’s finding that the tenant appellant’s claim for mental distress was “personal injury” within the meaning of Part 2 of the Civil Liability Act 2002 (NSW), and found that mental distress unassociated with physical injury is not a “personal injury” within the meaning of Part 2 of the CLA. The Appeal Panel upheld the Tribunal’s other findings regarding claims for loss of career prospects, loss of rent and rent reduction.
- O’Kane v Georgiou [2021] NSWCATAP 250 - In which the appellant tenants appealed from a decision of the Consumer and Commercial Division which ordered the termination of a residential tenancy agreement between the appellants and the respondent landlords. The Appeal Panel dismissed the appeal except for setting aside an order that the appellants pay the respondents $450 in respect of rent, as there was a separate order which allowed for the respondents to claim for rental arrears.
- ACS Equip Pty Ltd v Richards [2021] NSWCATAP 253 - In which the Appeal Panel dismissed an appeal from a decision of the Consumer and Commercial Division which found that the respondents did not have to pay the appellant for services rendered, because the appellant did not disclose to the respondents that the services were either pointless and not recommended or that there was a real risk that the work may be unsuccessful. The Appeal Panel found that the Tribunal did not err in its assessment of the evidence or in its interpretation of the Australian Consumer Law.
- Saleh v O’Brien [2021] NSWCATAP 240 - In which the Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division, and found that the Tribunal had failed to refer to s 8 of the Dividing Fences Act 1991 (NSW) in determining who should bear the costs of repairs to a dividing fence in a dispute between neighbours.
- Toplace Pty Ltd v Rashidianfar [2021] NSWCATAP 235 - In which the Appeal Panel allowed in part an appeal by a builder from a decision of the Consumer and Commercial Division, in which the Tribunal had ordered the builder to pay monies to the respondent home owner in respect of damage to personal effects and loss of rental income. The Appeal Panel found that it could not reasonably be supposed to have been in the contemplation of the builder at the time the building contract was entered into that the builder should be liable for loss of rental income for a subsequent owner of the property.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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| Consumer and Commercial Division - Tenancy G Blake AM SC, Senior Member; P Durack SC, Senior Member
In sum: The Appeal Panel allowed an appeal in part from a decision of the Consumer and Commercial Division of the Tribunal. The Appeal Panel set aside the Tribunal’s finding that the tenant appellant’s claim for mental distress was “personal injury” within the meaning of Part 2 of the Civil Liability Act 2002 (NSW), and found that mental distress unassociated with physical injury is not a “personal injury” within the meaning of Part 2 of the CLA. The Appeal Panel upheld the Tribunal’s other findings regarding claims for loss of career prospects, loss of rent and rent reduction.
Facts: In late April 2020 the respondents unlawfully prevented the appellant from entering and continuing to occupy residential premises that she rented from the respondents. At the time of the eviction, the tenancy was a periodic tenancy pursuant to s 18 of the Residential Tenancies Act 2010 (NSW) (RTA) which, pursuant to s 85, could only be terminated without grounds by order of the Tribunal following notice of termination of not less than 90 days after the day on which notice was given ([1]-[4], [6]).
The appellant commenced proceedings in the Tribunal, which found that, by locking out the appellant and removing her possessions from the property, the respondents had repudiated the agreement, and the appellant elected to accept the respondents’ repudiation, and by this means the tenancy agreement came to an end. The Tribunal found this amounted to termination of the residential tenancy agreement pursuant to s 81(4)(d) of the RTA (which provides for termination where the tenant abandons the residential premises) ([7]-[10]).
The appellant was partially successful, and was awarded amounts for financial loss consisting of accommodation expenses, storage fees, removalist costs and costs of replacing personal items and perishable food, and a further $2,500 in respect of non-financial losses, for breach of the landlord’s obligation to provide quiet enjoyment. The appellant appealed from the decision rejecting parts of her claim ([10]-[12]).
Held (allowing the appeal in part):
(i) The Tribunal should have concluded that termination occurred not under s 81(4)(d), as the Tribunal found, but pursuant to s 81(4)(g), which provides that an agreement terminates if “disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord)” ([9]).
Compensation for breach of the quiet enjoyment obligation
(ii) The appellant claimed she had suffered more than the acknowledged “inconvenience, embarrassment and frustration, and loss of the use of the premises” for which the $2,500 was granted. Recovery of damages in respect of these matters is available for breach of the landlord’s obligation concerning quiet enjoyment in accordance with the approach to the recovery of such damages in Baltic Shipping Co v Dillon (1993) 176 CLR 144; [1993] HCA 4, and the limitations on recovery in Part 2 of the Civil Liability Act 2002 (NSW) (CLA) are not applicable to such a claim: Moore v Scenic Tours Pty Ltd (2000) 268 CLR 326; [2020] HCA 17 (Moore’s case). Damages for mental distress fall within the same category of recoverable damage ([21]-[24]).
(iii) The Tribunal erred in finding the appellant’s claim in respect of mental suffering was “personal injury” within the terms of Part 2 of the CLA, and non-economic loss falling within s 16(1), which meant that there could be no award because there was no basis to make a finding that the severity of the non-economic loss was at least 15% of the most extreme case ([30]).
(iv) Mental distress unassociated with physical injury is not a “personal injury” within the meaning of Part 2 of the CLA. The Tribunal ought to have had regard to Moore’s case and recognised that the appellant’s claim for mental distress was an available one, as to which necessary factual findings needed to be made about its merits. The Appeal Panel makes no comments on the merits of the appellant’s claim ([27], [31]).
(v) The Tribunal erred in law by failing to explain its conclusion that there was no other inappropriate conduct involved in the manner of the breach of the residential tenancy agreement. This was a failure to provide adequate reasons; the Tribunal needed to address the material evidence on this subject, make findings as to the factual contentions of the appellant, and set out the reasoning that gave rise to its conclusion ([41]).
Claim for reduction in rent
(vi) There must be a reduction or withdrawal by the landlord of goods, services or facilities originally provided under the tenancy agreement before the Tribunal can make an order about excessive rent. Furthermore, s 44 of the RTA, which deals with a tenant’s remedies for excessive rent, is concerned with a reduction or withdrawal of the physical and other facilities, goods or services, provided within, or as part of, the tenanted property ([67]).
(vii) The appellant did not point to any claim, with supporting material, showing a basis for assessment of an amount of excessive rent founded solely upon withdrawal or reduction of specific goods, services or facilities. She made some reference on appeal to a failure by the Tribunal to refer to various changes under the lease, however, her claim was not based upon an assessment of the rental impact of such specific changes. Furthermore, it was not based upon identification of changes in the physical and other facilities, goods or services provided within, or as part of, the tenanted property ([68]).
(viii) The appeal was allowed in respect of claims for mental distress and aggravated damages allegedly resulting from the respondents’ breaches of the tenancy agreement, and remitted for determination by a differently constituted Tribunal ([72]-[73]).
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| Consumer and Commercial Division - Tenancy S Westgarth, Deputy President; J Lucy, Senior Member
In sum: The appellant tenants appealed from a decision of the Consumer and Commercial Division which ordered the termination of a residential tenancy agreement between the appellants and the respondent landlords. The Appeal Panel dismissed the appeal except for setting aside an order that the appellants pay the respondents $450 in respect of rent, as there was a separate order which allowed for the respondents to claim for rental arrears.
Facts: The appellants were tenants of the landlord respondent, who commenced proceedings alleging the appellants were in rental arrears from December 2020. The appellants submitted that a ledger filed as evidence by the respondent omitted several rental payments, and argued that they were only “around $450 in arrears”. The appellants did not submit any evidence in support of this contention ([1]-[2]).
The Tribunal at first instance found that the appellants breached the requirement in the rental agreement that they pay rent in advance, and were “unreliable in their payments”. The Tribunal found that although there were payments recently made prior to the hearing, the appellants continued to be in arrears, and the Tribunal was satisfied that the appellants had frequently failed to pay rent in accordance with the tenancy agreement. The breach was sufficient to justify termination of the agreement ([2]).
The appellants appealed on four grounds, including: (1) the appellants were not afforded procedural fairness as they had no appropriate opportunity to read through and understand the rental ledger filed by the respondent at the hearing; and (2) the Tribunal erred in its interpretation of the rental ledger and calculation of what the appellants owed ([3]).
Held (partially dismissing the appeal):
Ground 1
(i) Generally the Tribunal’s acceptance of the tender of an up to date ledger at a hearing of this kind would not be a matter conducive to a finding of procedural unfairness. Indeed it would be necessary to have evidence of the alleged arrears as at the date of the hearing in order for an order for termination to be made, as well as an order for the amount of arrears to be paid ([27]).
(ii) The Tribunal afforded the appellants a significant amount of time in which to make submissions about the ledger; although they did not identify all the errors in the ledger, the appellants made extensive submissions and did not request an adjournment ([32], [35]).
(iii) A failure to offer an adjournment to a self-represented party may, in some circumstances, constitute a failure to comply with the rules of procedural fairness, or failure to comply with an obligation under s 38(5)(c) of the NCAT Act. However, in the present circumstances, the Tribunal was not obliged to offer the appellants an adjournment; the Tribunal afforded the appellants a reasonable opportunity to be heard and the appellants were not caused any practical injustice ([35]-[38]).
(iv) In a number of recent cases the High Court has considered the requirement for materiality in the context of a breach of the obligation to provide procedural fairness amounting to jurisdictional error: See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17. The plurality in each case has held that there is ordinarily a requirement for the breach of procedural fairness to be material in the sense that it involved a realistic possibility that the decision in fact made could have been different had the breach not occurred ([40]).
(v) In Hossain, Edelman J referred at [65] to both jurisdictional error and non-jurisdictional error and said that for both types of errors “materiality is a common restriction”. In MZAPC, the plurality looked to cases involving an alleged denial of procedural fairness not involving jurisdictional error and said at [46], “procedural fairness is a matter of practical injustice, so that a demonstration of a bare or merely technical denial of procedural fairness is not sufficient to establish entitlement to a new trial” ([41]).
(vi) The appellants were required to satisfy the Tribunal that the alleged breach of procedural fairness was material in the sense that it involved a realistic possibility that had the Tribunal given them a reasonable opportunity to be heard in respect of the up to date ledger (assuming, contrary to the Appeal Panel’s view, that it did not), there was a realistic possibility that the Tribunal would not have terminated the tenancy. The Appeal Panel was not so satisfied ([27], [40]-[42]).
Ground 2
(vii) The making of a factual error is not to be equated with legal unreasonableness. The Tribunal was incorrect in finding the appellants were in arrears at the time of the hearing; however it did not make any factual error in finding that they had frequently failed to pay rent, or that they had not complied with their obligation to pay rent. It is nevertheless appropriate to set aside the Tribunal’s order that the appellants pay $450 to the respondents; the respondents are given leave to claim arrears of rent in conjunction with a separate order by the Tribunal which regards a relisting to determine the occupation fee owing ([1], [47]-[48], [55]).
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| Consumer and Commercial Division - Consumer Claim
S Westgarth, Deputy President; Coleman ADCJ, Principal Member
In sum: The Appeal Panel dismissed an appeal from a decision of the Consumer and Commercial Division which found that the respondents did not have to pay the appellant for services rendered, because the appellant did not disclose to the respondents that the services were either pointless and not recommended or that there was a real risk that the work may be unsuccessful. The Appeal Panel found that the Tribunal did not err in its assessment of the evidence or in its interpretation of the Australian Consumer Law.
Facts: The appellant (ACS) was contracted by the respondents (the Richards) to inspect a water bore on their property. ACS provided an initial inspection and assessment report with a number of “recommendations” with respect to measures to be taken to ensure that the bore would “operate at full capacity”, all but one of which were accepted by the Richards ([5]-[6]).
ACS performed the works set out in its quotation and provided a post-work inspection. The Richards paid for the initial inspection, but refused to pay for the redevelopment of the bore on the basis that the works performed by ACS had not made any improvement to the operation of the bore ([7]-[9]).
ACS argued that there was a “design flaw” in the bore caused by the driller who had originally sunk the bore. This “design flaw” was not mentioned in ACS’s reports. An independent expert gave evidence that “from the first inspection of the bore that it should have been easy to make the decision that there was no benefit to be gained from a rehabilitation point of view”. The Tribunal determined that ACS was not entitled to be paid for the work, and found that ACS ought to have disclosed to the Richards that either the bore had a design flaw and redevelopment was therefore pointless and not recommended, or that there was a real risk that the proposed redevelopment work may be unsuccessful. ACS appealed ([10]-[11], [17], [20]).
Held (dismissing the appeal):
(i) ACS’s assertion that the Tribunal’s finding that their director’s (Mr Woods) evidence was untruthful in the absence of having heard his evidence or heard him being cross examined denied ACS procedural fairness was misconceived. The Tribunal did not find, expressly or impliedly, that Mr Woods’ evidence was “untruthful”; the Tribunal’s consideration of his evidence before affording it no weight implicitly shows acceptance that the evidence was truthful, or at least not untruthful ([23]-[24]).
(ii) Although the Tribunal referred to “significant weight” and “no weight” with respect to the evidence of an independent expert and Mr Woods respectively, the reality is that, where there were two diametrically opposing opinions, in the absence of a reason to reject both, the Tribunal had to ultimately, or it was open to the Tribunal to, “prefer” one over the other. It is apparent from the Tribunal’s reasons that it did have regard to the evidence of the expert and Mr Woods, and gave their evidence proper, genuine and realistic consideration as it was required to ([25]).
(iii) In the absence of cross-examination being requested, and refused, there is no procedural unfairness in the manner in which the Tribunal dealt with this evidence ([26]).
(iv) The Tribunal found that by failing to disclose to the Richards that there was a real risk that the proposed redevelopment work may be unsuccessful, ACS breached s 61(2) of the Australian Consumer Law (ACL), and by failing to disclose that the bore had a design flaw and redevelopment may be unsuccessful, ACS breached s 60 of the ACL. The Tribunal did not apply the “wrong test” or displace the tests in ss 60 or 61 by referring to a “real risk”; this language did not disturb the Tribunal’s critical findings of fact or involve taking into account irrelevant considerations, and it was open to the Tribunal to make the observations that it did ([66]-[67], [73]-[74]).
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| Consumer and Commercial Division - Commercial
P Durack SC, Senior Member; D Charles, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division, and found that the Tribunal had failed to refer to s 8 of the Dividing Fences Act 1991 (NSW) in determining who should bear the costs of repairs to a dividing fence in a dispute between neighbours.
Facts: The appellants appealed against orders of the Tribunal for the parties to pay for fencing work in equal parts, and that the respondent pay to the appellants his portion by May 2021. The appellants submitted that the repair work was needed to restore the fence to its previous state, following damage to the existing fence caused by unauthorised work carried out by the respondent, and as such the respondent should bear all of the costs of the repair work in accordance with s 8 of the Dividing Fences Act 1991 (NSW) (DFA) ([2]-[4], [12]-[14]).
Held (allowing the appeal):
(i) The Tribunal failed to address the substance of the appellants’ case for payment of the whole cost of the repair work, and erred in law by failing to ask itself the correct question pursuant to s 8 of the DFA ([18]).
(ii) The Tribunal did not accept the respondent’s contention that there was an oral agreement between the parties for alteration work to be carried out. In those circumstances, if the Tribunal had accepted that the work now required was occasioned by an unauthorised alteration to an existing, satisfactory dividing fence, it is impossible to see how the Tribunal could reasonably arrive at any other conclusion than that the respondent should bear the costs of the repair work ordered by the Tribunal ([21], [24]).
(iii) The respondent did not attend the hearing at the Tribunal; the respondent was represented by another person, not a lawyer. In these circumstances, it was not open to the Tribunal to regard the respondent as having adduced any evidence to contradict that of the appellants. The Tribunal erred in finding otherwise ([22]-[23]).
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| Consumer and Commercial Division - Home Building
K Ransome, Senior Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel allowed in part an appeal by a builder from a decision of the Consumer and Commercial Division, in which the Tribunal had ordered the builder to pay monies to the respondent home owner in respect of damage to personal effects and loss of rental income. The Appeal Panel found that it could not reasonably be supposed to have been in the contemplation of the builder at the time the building contract was entered into that the builder should be liable for loss of rental income for a subsequent owner of the property.
Facts: The appellant was the builder of a unit complex, and the respondent purchased a unit from the original owner. The respondent alleged that from the time he moved in there was water leaking into the unit, and although repairs were carried out by the appellant, the leaks continued. After almost 18 months of living in the unit, the respondent sought to rent it out while he temporarily moved to a fully furnished unit in regional NSW for work. The real estate agent told the respondent that the property was not fit for occupation by a tenant. While the property was uninhabited, there was severe rainfall and the unit was inundated; the carpets were wet and the furniture was damaged ([2]-[4]).
The appellant carried out further repairs and claims that since June 2019 the rectification work has been complete. The appellant also carried out cleaning, carpet replacement and mould remediation in the unit. The respondent sought compensation from the appellant for obtaining a mould report, loss of rental income, and damage to personal items; the appellant agreed to pay for the mould report and the value of some of the destroyed items, but not replacement costs or for loss of rent. The respondent commenced proceedings at the Tribunal seeking $27,156, and was awarded $11,167.15 for damage to personal effects and $13,036.66 loss of rental income. The appellant appealed ([5]-[6], [10], [13]).
Held (allowing the appeal in part):
(i) The respondent disputed the amount claimed in compensation for damages, but failed to provide any evidence that the amounts were excessive or unreasonable. The onus for proving the loss rests with the person claiming it. It was open, on the evidence before it, for the Tribunal to award the amounts it did ([24]-[25]).
(ii) Although the Tribunal did not explicitly address what, if any, reasonable steps could have been taken by the respondent in mitigation, it is implicit from the decision that the Tribunal was not of the view that the respondent should have removed his goods from the premises, as suggested by the appellant. His rented premises in regional NSW were fully furnished, and the major inundation occurred after the respondent had moved there. The appellant did not argue at first instance that the respondent should have arranged for the apartment to be aired out while he was living in regional NSW, and in any event, this is not what would be reasonably required in the circumstances. There was no error in the Tribunal’s approach to the issue of damages ([27]-[29]).
(iii) A party is bound by the manner in which it conducted its own case. It was not open for the appellant at the appeal to dispute its concession made at the first instance hearing that the premises were uninhabitable between February and August 2019 ([30]).
(iv) The relevant time for assessment of what was in the contemplation of the parties is the time at which the contract was entered into. The statutory warranties are implied into every building contract by virtue of s 18B of the Home Building Act 1989 (NSW). Though the respondent was not a party to the building contract, he is able, through the legislative provisions, to take advantage of those warranties as successor in title. As such, the respondent subsumed rights under the building contract to enforce the statutory warranties; the builder is only responsible for works contracted under the building contract and the time within which those warranties may be enforced runs from the date of completion of the building work. As successor in title, the respondent was under the same duty to mitigate as the original contracting party pursuant to s 18BA(2) ([38], [40]-[41]).
(v) The person claiming damages must be able to show that, in this case, loss of rent, was more than merely one of a range of foreseeable outcomes, and that there must be some knowledge on the part of the builder at the time the contract is entered into ([45]-[46]).
(vi) It could not reasonably be supposed to have been in the contemplation of the builder at the time the building contract was entered into that a successor in title to an original owner may be transferred to a regional location for work for a six month period and may wish to rent out his apartment during that period and, presuming a tenant is found, would suffer loss of rent. The builder would have no way of knowing that such circumstances were foreseeable and likely to arise from a breach of the contract by the builder. Therefore loss of rent is not something that ought reasonably to have been within the appellant’s contemplation at the time the contract was entered into, and the respondent is not entitled to damages for loss of rent ([53]-[54]).
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| | | Administrative and Equal Opportunity Division
Decision of: S Higgins, Senior Member; R C Titterton OAM, Senior Member
Catchwords: APPEAL – ADMINISTRATIVE LAW – appeal from a decision of the Tribunal to affirm the decision of the respondent agency to refuse to grant the appellant access to the written responses of two officers of the respondent agency during the course of an internal investigation of allegations made against them by appellant – whether the Tribunal ignored, misunderstood or misinterpreted the appellant’s evidence and submissions – whether a disclosure of the written responses could reasonably be expected to reveal or substantiate misconduct by the respondent or a member of the respondent – no question of principle
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| Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; S Goodman SC, Senior Member
Catchwords: APPEALS – whether error of law in construction of building contract or failure to address submissions and evidence – whether leave to appeal should be granted
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| Consumer and Commercial Division - Social Housing
Decision of: G Blake AM SC, Senior Member; J McAteer, Senior Member
Catchwords: APPEALS – Reinstatement – Application dismissed
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| Consumer and Commercial Division - Consumer Claim
Decision of: Armstrong J, President; T Simon, Principal Member
Catchwords: CONSUMER LAW – home building – procedural fairness – appeal on a question of law – extension of time to appeal – legal representation - costs
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| Administrative and Equal Opportunity Division
Decision of: R C Titterton OAM, Senior Member; Dr J Lucy, Principal Member
Catchwords: APPEAL – failure to determine jurisdiction – whether the Tribunal erred by taking into account irrelevant considerations or failing to take into account relevant considerations – apprehended bias
ADMINISTRATIVE LAW — Privacy — Personal information
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| Consumer and Commercial Division - Home Building
Decision of: K Ransome, Senior Member; Dr J Lucy, Senior Member
Catchwords: APPEAL – home building claim – claim by successor in title under statutory warranties – damage to goods by water ingress – assessment of damages – claim for lost rent – applicability of principles in Hadley v Baxendale to successor in title under building contract
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| Consumer and Commercial Division - Home Building
Decision of: D Cowdroy ADCJ, Principal Member; D Robertson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – No issue of principle
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| Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member
Catchwords: APPEAL – Costs – costs of application for a stay
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| Consumer and Commercial Division - Strata
Decision of: Coleman ADCJ, Principal Member; A Suthers, Principal Member
Catchwords: COSTS – whether special circumstances warranting an order for costs
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| Consumer and Commercial Division - Consumer Claim
Decision of: A Suthers, Principal Member; S Goodman SC, Senior Member
Catchwords: COSTS – whether special circumstances warranting an order for costs
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| Consumer and Commercial Division - Commercial
Decision of: Hennessy ADCJ, Deputy President; A Britton, Principal Member
Catchwords: PROPERTY LAW – dividing fences-liability of adjoining owner for the whole of the cost of fencing work pursuant to s 8 of the Dividing Fences Act 1991 (NSW)
APPEALS – error of law-failure to ask the right question-conclusion not to prefer the evidence of one party over another not reasonably open to the Tribunal-no evidence adduced by respondent to the Tribunal at first instance
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; S Goodman SC, Senior Member
Catchwords: COSTS – no question of principle
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Sarginson, Senior Member
Catchwords: BUILDING AND CONSTRUCTION---Residential building work---Written contract---Whether payments made outside terms of written contract---Whether contract had been varied---No error established
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| Consumer and Commercial Division - Strata
Decision of: A Suthers, Principal Member
Catchwords: PRACTICE AND PROCEDURE – stay application – compulsory appointment of strata manager
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| Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Kearney, Senior Member
Catchwords: COSTS – no question of principle
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| Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; J Currie, Senior Member
Catchwords: APPEAL – ADMINISTRATIVE LAW – appeal from a decision of the Tribunal to affirm the decision of the respondent agency to refuse to grant the appellant access to information – meaning of phrases “could reasonably be expected” and “facilitate” in cl 2(d) and 2(f) of the table to s 14 of the Government Information (Public Access) Act 2009 (NSW)
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| Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; M Gracie, Senior Member
Catchwords: APPEALS-- error of law-inadequate reasons-taking account of irrelevant considerations-failing to take account of relevant considerations-redetermination
GOVERNMENT INFORMATION- information held by local council-communications with local council and local residents -whether personal information-weighing of competing interests for and against disclosure
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| Administrative and Equal Opportunity Division
Decision of: A Britton, Principal Member; Emeritus Prof G Walker, Senior Member
Catchwords: ADMINISTRATIVE LAW — Particular administrative bodies — NCAT — administrative review of decision made under the Privacy and Personal Information Protection Act 1988 (NSW)
PROCEDURE — dispensing with requirement to hold a hearing — precondition to exercising power to conduct hearing “on the papers” as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW)
COSTS — special circumstances — whether discretion to award costs should be exercised
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| Consumer and Commercial Division - Tenancy
Decision of: G Blake AM SC, Senior Member; P Durack SC, Principal Member
Catchwords: LANDLORD and TENANT - Residential Tenancies Act 2010 (NSW) - residential tenancy - unlawful “lock out” of tenant - claim for mental distress -claim for aggravated damages - claim for a rent reduction
APPEALS - error of law - claim for mental distress not precluded by Part 2 of the Civil Liability Act 2002 (NSW) - inadequate reasons concerning aggravated damages claim - no other appellable error
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| Consumer and Commercial Division - Tenancy
Decision of: Cowdroy ADCJ, Principal Member; A Boxall, Senior Member
Catchwords: APPEAL - Residential Tenancies Act – breaches of act by landlord – defects in residential premises – rent relief ordered – appellant claiming that her representative at the first hearing did not present her case accurately – principles concerning a second hearing – errors in final calculations – adjustments made to correct error
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| Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; Dr J Lucy, Senior Member
Catchwords: APPEAL - termination of a residential tenancy agreement - arrears of rent-procedural fairness - practical injustice - materiality of any unfairness - errors in ledger
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| Consumer and Commercial Division - Consumer Claim
Decision of: G Curtin SC, Senior Member; D Charles, Senior Member
Catchwords: CONSUMER LAW - consumer guarantees — supply of services — guarantee as to due care and skill - statutory guarantees not to be excluded by contract – existence of warranty to repair did not exclude remedies for breach of statutory guarantee
ADMINISTRATIVE LAW — hearing rule — notice – time to prepare and serve evidence – notice given – no procedural unfairness
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| Consumer and Commercial Division - Tenancy
Decision of: J S Currie, Senior Member; Dr J Lucy, Senior Member
Catchwords: RETAIL LEASE- Application for termination and possession where premises sold with vacant possession – evidence at hearing showed sale agreed subject to existing tenancy. Decision to dismiss application affirmed on appeal.
ADMINISTRATIVE LAW – Civil and Administrative Tribunal NSW- appeal from Consumer and Commercial Division- leave sought- “significant new evidence”: parties had amended sale agreement to require vacant possession- failure to establish that that new evidence was “not reasonably available” at time of hearing – Leave to appeal refused
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| Consumer and Commercial Division - Consumer Claim
Decision of: S Westgarth, Deputy President; Coleman ADCJ, Principal Member
Catchwords: APPEAL – consumer claim-services concerning redevelopment of a bore to produce water-independent expert report – no weight given to opinion of a director of appellant – rejection of “no evidence” ground – failure to warn of risk that service might not reasonably be expected to achieve intended outcome – Australian Consumer Law – s60 and s 61
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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 - Home Building
Decision of: K Rosser, Principal Member; P H Molony, Senior Member
Catchwords: APPEAL – From finding of fact — Credibility of witnesses – weight to be given to expert report - Procedural fairness — reasonable opportunity to be heard – Leave to appeal – decision fair and equitable – decision not against the weight of the evidence
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| Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; S Goodman SC, Senior Member
Catchwords: APPEALS – whether error of law – whether leave to appeal should be granted
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| | Le v Vo [2021] NSWCATAP 257 Consumer and Commercial Division - Commercial
Decision of: S Thode, Senior Member; A Boxall, Senior Member
Catchwords: APPEAL – LEASES AND TENANCIES – retail lease - terms of the lease – failure to disclose grounds of appeal – no issue of principle
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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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