NCAT Appeal Panel Decisions Digest Issue 8 of 2024 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in August 2024: |
Australian Postal Corporation v Williams [2024] NSWCATAP 168: An Appeal Panel allowed an appeal and dismissed the proceedings at first instance for want of jurisdiction. The respondent had commenced proceedings in NCAT against Australia Post, claiming it had breached consumer guarantees under the Australian Consumer Law (NSW) (ACL). On appeal, the Appeal Panel found that Australia Post is “the Commonwealth” for the purposes of s 75(iii) of the Commonwealth Constitution such that federal jurisdiction was invoked therein depriving NCAT of jurisdiction to hear the matter. While NCAT has no jurisdiction to exercise judicial power in a matter within federal jurisdiction, it does have incidental jurisdiction to decide whether proceedings before it are within its jurisdiction.
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Dakin v ICC Group West Ryde Pty Ltd [2024] NSWCATAP 151: An Appeal Panel allowed an appeal and remitted the proceedings for hearing and redetermination where NCAT had held that a legally unenforceable family arrangement existed between a mother and son where there was no written agreement. This finding was made despite s 13 of the Residential Tenancies Act 2010 (NSW) (RT Act), which states that a residential tenancy agreement may exist regardless of whether the agreement is in writing or formal, and regardless of whether it specifies a period or term for the tenancy. Under s 13(2), an agreement may also be implied. The Appeal Panel held that there existed an intention to create legal relations here such that a residential tenancy agreement existed.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Is Australia Post “the Commonwealth” for the purposes of s 75(iii) of the Commonwealth Constitution such that consumer claims brought against it cannot be heard in NCAT?
Australian Postal Corporation v Williams [2024] NSWCATAP 168 Consumer and Commercial Division - General Armstrong J, President; T Simon, Principal Member
In sum: For the purposes of s 75(iii) of the Commonwealth Constitution, Australia Post is “the Commonwealth”. This should be differentiated from “the Crown in right of the Commonwealth” which is a subset of “the Commonwealth”. Generally, whether a body constitutes “the Commonwealth” for s 75(iii) purposes should be interpreted broadly, and in light of relevant rules, regulations, and legislation, here being the Australian Postal Corporation Act 1989 (Cth), as well as any key indicia such as those enumerated in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1.
Facts: Mr Williams (the respondent) commenced proceedings in NCAT seeking compensation in the amount of $20,000 from Australia Post (the appellant) in respect of lost parcels. Mr Williams submitted that Australia Post engaged in misleading and deceptive conduct in breach of s 18 of the ACL and did not comply with the consumer guarantee in s 60 of the ACL in failing to provide services with due care and skill. NCAT at first instance found in favor of Mr Williams, deciding that it had jurisdiction to hear the matter. On appeal, Australia Post submitted that it, Australia Post, is “the Commonwealth” for the purposes of s 75(iii) of the Commonwealth Constitution such that NCAT has no jurisdiction to hear and determine the application. This is because NCAT has no jurisdiction to exercise judicial power in a “matter” within federal jurisdiction. Australia Post also submitted that the mere raising of this contention is sufficient to deprive NCAT of jurisdiction.
Held (allowing the appeal; dismissing the proceedings at first instance for want of jurisdiction): (i) It is well established that NCAT has no jurisdiction to exercise judicial power in a matter that falls within federal jurisdiction. That is because it is not a court, and not a court of a State endowed with jurisdiction under Ch III of the Constitution (Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15). However, it does have incidental or anterior jurisdiction to determine whether a matter brought before it falls within its jurisdiction (Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16). |
(ii) The mere raising of the contention that Australia Post is “the Commonwealth” for s 75(iii) purposes, on a genuinely arguable basis, will not deprive NCAT of jurisdiction. The Appeal Panel found that the raising of this contention simply advances a question requiring factual determination which falls anterior to the justiciable matter, rather than encompassing the heart of the “justiciable controversy” and constituting a “matter” arising under s 75 of the Constitution (see Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16; Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316; Bir v Secretary, Ministry of Health [2024] NSWCATAD 178 at [19]) (at [41], [45]-[46]). |
(iii) The Appeal Panel agreed with the decision in Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 that Australia Post is “the Commonwealth” for the purposes of s 75(iii), meaning that NCAT had no jurisdiction to determine the consumer claim. In determining whether a body is “the Commonwealth”, the High Court has held that “the Commonwealth” within the meaning of s 75(iii) should be construed broadly (Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63 at 406; Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; [1969] HCA 44 at 336), and should be differentiated from “the Crown in right of the Commonwealth”, which is a subset of “the Commonwealth” (at [48]-[51]). |
(iv) Additionally, ascertaining whether Australia Post is “the Commonwealth” should involve considering the combined effects of legislation such as the Australian Postal Corporation Act 1989 (Cth), regulations and rules, as well as by weighing key indicia such as those set out in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [127]. Whilst Australia Post enjoys only limited privileges and immunities of the Commonwealth and does not enjoy immunity from taxation, these factors do not outweigh other indicia in favour of the characterisation of Australia Post as “the Commonwealth” such as the degree of the control the Executive exercises over Australia Post (at [69], [77]-[78]). |
(v) It is also necessary to have regard to the functions of Australia Post as a whole such that Australia Post could not be rendered “the Commonwealth” for s 75(iii) purposes solely in relation to its letter delivery services. NCAT below fell into error when separating government or regulatory functions of Australia Post from the “business” activity of the body which provides ancillary parcel or courier services, rather than considering Australia Post’s functions as a whole and its relationship with the Commonwealth polity (at [67]-[68], [87]). |
2. Does a residential tenancy agreement need to be in writing and specify the length of the agreement to be legally enforceable?
Dakin v ICC Group West Ryde Pty Ltd [2024] NSWCATAP 151 Consumer and Commercial Division P Durack SC, Senior Member; P H Molony, Senior Member
In sum: For a residential tenancy agreement to exist, there must be an “agreement” under s 13(1) of the RT Act meaning there must be an intention to create legal relations. Under s 13(2) of the RT Act, a residential tenancy agreement may exist despite the agreement being implied, and not in writing. The RT Act also recognises the common law notion of a periodic tenancy agreement, such that no fixed term is provided.
Facts: The appellant (the second respondent’s mother) had been living in the respondent’s unit and paying rent on a monthly basis, though no written agreement existed. The second respondent (the appellant’s son) was the sole director and secretary of the first respondent. After living in the unit for some time, the respondent informed the appellant that she could no longer reside in the property, and the appellant went to live with her daughter, before moving into temporary accommodation. The appellant commenced proceedings in NCAT seeking various orders including a declaration under s 11 of the RT Act that this arrangement was a residential tenancy agreement as well as seeking compensation.
NCAT at first instance rejected the contention that a residential tenancy agreement existed between the parties, instead holding that what existed was an informal family arrangement “better characterised as a licence agreement at will”, and which was legally unenforceable.
On appeal, the appellant submitted that NCAT did not consider those aspects of s 13 of the RT Act which recognise that a residential tenancy agreement does not require that a term or length of the tenancy be specified, and that a written tenancy agreement is not required. The appellant also submitted that NCAT did not consider that the scope of a periodic agreement may be implied, including by occupancy and payment of rent on a monthly basis.
Held (allowing the appeal; remitting the proceedings to the Consumer and Commercial Division for hearing and redetermination): (i) A residential tenancy agreement is defined in s 13 of the RT Act and includes that there must be an “agreement” (s 13(1)), and that the agreement need not be in writing or formal, and may be implied (s 13(2)). For there to be an “agreement”, there must also be an intention to create legal relations (see Case v Frimont [2021] NSWCA 30 at [28]) (at [26]-[27]). |
(ii) NCAT at first instance erred in respect of its finding that no residential tenancy agreement had been made. The finding that this was instead a family arrangement for a licence at will does not align with the finding that there was no intention to create legal relations. It is implicit from the conclusion that a licence agreement had been made, that there existed an intention to create legal relations, namely a licence (at [35], [66]). Additionally, contrary to the respondent’s submissions, the High Court has disapproved of the existence of a rebuttable presumption that an arrangement between family members is not intended to have legal force (Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR 95 at [26]-[27]) (at [61]). |
(iii) NCAT also failed to ask itself the right questions when it failed to refer to s 13 of the RT Act, as well as to the potential existence of a periodic agreement. Instead, NCAT simply made reference to the need for a written residential tenancy agreement, where in fact s 13 is explicit that no written agreement is required. NCAT at first instance held that because the period of the agreement had not been specified, the appellant had not proved an essential term required at the start of the tenancy agreement. Again, this finding failed to consider that s 13 specifies a residential tenancy agreement may be implied, and also failed to consider the common law notion that a monthly periodic tenancy agreement of indefinite duration may be implied via the monthly payment of rent. NCAT emphasised that it saw the arrangement as a temporary or transitional one, but this assessment is not inconsistent with the existence of a periodic agreement, a characterisation which NCAT failed to consider (at [62]-[64], [67]). |
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Ngo v Sin & Partner Pty Ltd [2024] NSWCATAP 148 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Ziegler, Senior Member Catchwords: APPEALS – dispute concerning a retail lease regulated by the Retail Leases Act 1994 (NSW) – whether the Tribunal had jurisdiction to determine the claim of the Appellant – scope of remedies under the Retail & Other Commercial Leases (COVID-19) Regulation 2020 and National Code of Conduct. |
Daley v Budget Auto Group Pty Ltd [2024] NSWCATAP 149 Consumer and Commercial Division Decision of: M Harrowell, Deputy President; D Goldstein, Senior Member Catchwords: PRACTICE AND PROCEDURE – Tribunal Member acting as a conciliator and as the Member constituted to hear the dispute – obligations of Tribunal when performing dual role – power to set aside consent orders – duty of Tribunal to ensure parties understand nature of proceedings - incorrect and incomplete statements as to the law during conciliation – reliance by party consenting to orders on incorrect or incomplete statements made by Tribunal |
Ilhan v Easy Automatic Gate Pty Ltd [2024] NSWCATAP 150 Consumer and Commercial Division - Home Building Decision of: M Harrowell, Deputy President; G Blake AM SC, Senior Member Catchwords: APPEALS - Constructive failure to exercise jurisdiction - No material error of law - Appeal dismissed APPEALS - Leave to appeal - Principles governing - Leave to appeal refused APPEALS - Procedural fairness - Failure of the builder to strictly comply with procedural orders - Appeal dismissed BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building dispute - Where breach of statutory warranties by the builder not established |
Dakin v ICC Group West Ryde Pty Ltd [2024] NSWCATAP 151 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; P H Molony, Senior Member Catchwords: LEASES and TENANCIES-whether a residential tenancy agreement as defined in s 13 of the Residential Tenancies Act 2010 (NSW) was entered into between the parties-claim for compensation for wrongful eviction-arrangement made between mother and son-whether legally unenforceable family arrangement APPEALS-alleged apprehended bias-whether failure by the Tribunal to apply the right test and ask itself the right questions-whether Tribunal took into account irrelevant considerations and failed to take into account relevant considerations |
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Gregory v Barrett [2024] NSWCATAP 153 Consumer and Commercial Division Decision of: S Thode, Principal Member; A Boxall, Senior Member Catchwords: LEASES AND TENANCIES – Notice of Appeal filed out of time – no extension sought – time not extended |
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Nimmons v The Owners Strata Plan No 10441 [2024] NSWCATAP 157 Consumer and Commercial Division Decision of: G Blake AM SC, Senior Member; A Boxall, Senior Member Catchwords: APPEALS - Constructive failure to exercise jurisdiction - Appeal allowed APPEALS - Leave to appeal - Principles governing - Leave to appeal refused LAND LAW - Strata title – Whether a quarantine order should be made - Quarantine order made |
Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; P H Molony, Senior Member Catchwords: APPEALS — appeal on question of law and mixed question of fact and law — no error of law — leave to appeal — no utility in granting leave — leave to appeal refused. TAXES and DUTIES — concessional rate of duty — whether a declaration of trust is a “transfer of dutiable property” for purposes of s 55 of the Duties Act — whether s 55 applies only to resulting trusts — whether one supplying purchase monies indirectly via trust is the real purchaser of a resulting trust |
Lo v Aree [2024] NSWCATAP 159 Consumer and Commercial Division - Strata Schemes Decision of: G Sarginson, Senior Member; P H Molony, Senior Member Catchwords: LAND LAW---strata title---by-laws---inadequate floor covering---noise transmission---construction of by-law |
YJC v Public Guardian [2024] NSWCATAP 160 Guardianship Division Decision of: Armstrong J, President; A Britton, Deputy President; J V Le Breton, General Member Catchwords: DOCTRINE OF PRECEDENT — application to NCAT — whether “last resort principle” forms part of the ratio decidendi in Holt v Protective Commissioner (1993) 31 NSWLR 227 and Mv M [2013] NSWSC 1495 — whether “last resort principle” constituted “seriously considered” dicta in Holt v Protective Commissioner and M v M STATUTORY INTERPRETATION — whether s 25M of the Guardianship Act 1987 (NSW) creates a presumption that where available a “suitable person” must be appointed to manage the estate of a protected person over the NSW Trustee and Guardian APPEALS –– appeal from summary dismissal of decision made under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– “lacking in substance” –– whether Tribunal applied the correct test ADMINISTRATIVE LAW — legal unreasonableness — whether decision to commit the management of the protected person’s estate to the NSW Trustee and Guardian was “manifestly unreasonable”, lacked an evident and intelligible justification REASONS FOR DECISION — whether reasons for decision were adequate |
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Kamalesvaran v Ng [2024] NSWCATAP 163 Consumer and Commercial Division Decision of: K Ransome, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – landlord and tenant – whether termination notice retaliatory – whether denial of procedural fairness – whether relevant considerations not taken into account |
Sultan v The Owners Strata Plan no 54721 (No 2) [2024] NSWCATAP 164 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; G Blake AM SC, Senior Member Catchwords: COSTS - self represented appellant seeks costs of the appeal limited to the lodgement fee, costs of an expert and other expenses - expert report not tendered at first instance and not relevant to determination of the appeal - whether the respondent should have an order in its favour for its costs in resisting the appellants application. |
Ahmed v Phase Projects Pty Ltd (No 2) [2024] NSWCATAP 165 Consumer and Commercial Division - Home Building Decision of: S Westgarth, Deputy President; G Blake AM SC, Senior Member Catchwords: COSTS - self represented appellant seeks costs of the appeal limited to the lodgement fee, costs of an expert and other expenses - expert report not tendered at first instance and not relevant to determination of the appeal - whether the respondent should have an order in its favour for its costs in resisting the appellants application. |
Donohoe v Albulario [2024] NSWCATAP 166 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; S Higgins, Senior Member Catchwords: APPEALS — Procedural fairness — Applicable principles - Whether failure to afford procedural fairness by Tribunal member not informing unrepresented party of right to cross-examine witness and to apply for an adjournment — Appeal dismissed BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building dispute – Incomplete work and delay in completion – Money order made |
Martins-Lopes v Keller [2024] NSWCATAP 167 Consumer and Commercial Division Decision of: D Ziegler, Senior Member; S de Jersey, Senior Member Catchwords: APPEAL — questions of law — procedural fairness — adequacy of reasons |
Australian Postal Corporation v Williams [2024] NSWCATAP 168 Consumer and Commercial Division - General Decision of: Armstrong J, President; T Simon, Principal Member Catchwords: APPEALS – jurisdiction of NSW Civil and Administrative Tribunal (NCAT) to determine matter in exercise of judicial power where the Australian Postal Corporation (trading as Australia Post) is a party – authority to decide whether Australian Postal Corporation is “the Commonwealth” for the purposes of s 75(iii) of the Constitution – whether mere raising of that contention on a genuine basis deprives NCAT of jurisdiction – jurisdiction of NCAT’s Appeal Panel to make orders affecting decision at first instance in absence of ability to adjudicate on matters in federal jurisdiction CONSTITUTIONAL LAW – Chapter III – “matter” – justiciable controversy –– question of fact – where one party is the Commonwealth and where common ground that NCAT not a "court of a State" – where NCAT exercising State judicial power in hearing and determining consumer claim DOCTRINE OF PRECEDENT – NCAT Appeal Panel determination on question of law not binding on differently constituted NCAT Appeal Panel – consistency in NCAT decision-making as statutory objective |
FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 Administrative and Equal Opportunity Division Decision of: A Suthers, Principal Member; G Blake AM SC, Senior Member Catchwords: APPEALS - Leave to appeal - Principles governing - Leave to appeal refused APPEALS – Scope of question of law - Appeal dismissed TAXES AND DUTIES - Land tax – Construction and application of cl 6(2)(c) of Sch 1A to the Land Tax Management Act 1956 (NSW) – Requirement that “intended use and occupation” of land be lawful as part of claim for principal place of residence exemption |
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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. |
