NCAT Appeal Panel Decisions Digest Issue 9 of 2021 | 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 2021:
Louridas v Askander [2021] NSWCATAP 261 - In which the Appeal Panel dismissed an appeal from the Consumer and Commercial Division in which the appellants sought to have consent orders set aside on the basis of a denial of procedural fairness. The Appeal Panel found that, in the context of the appellants being represented by their son, the Tribunal requesting that the son turn his phone off speaker so that the appellants were unable to hear the hearing in order to reduce background noise was not a denial of procedural fairness. Roach v Swain [2021] NSWCATAP 258 - In which the Appeal Panel allowed an appeal from the Consumer and Commercial Division because the Tribunal had failed to adjourn the proceedings. The Appeal Panel found that the Tribunal should have adjourned because the appellants were not notified of, and were unaware of, the proceedings, and were consequently unprepared and unable to present their case. Barsoum v Chief Commissioner of State Revenue [2021] NSWCATAP 266 - In which the Appeal Panel refused leave to appeal and dismissed the appeal from a costs order of the Tribunal, which ordered the appellant to pay the respondent’s costs of and incidental to the proceedings. Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 - In which the Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division in which the Tribunal had overturned the appellant’s decision to cancel the respondent’s provider approval to act as a family day care service provider. The Appeal Panel found that, in making that decision, the Tribunal failed to provide adequate reasons and erred in law by failing to deal with the essence of the appellant’s case. Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287 - In which the Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division, which had failed to allow the appellant the opportunity to cross-examine the respondent and her witness. This constituted procedural unfairness amounting to a practical injustice. Cong v Ning [2021] NSWCATAP 292 - In which the Appeal Panel allowed an appeal in part from a decision of the Consumer and Commercial Division. The Appeal Panel found that the there was no requirement that a reduction in revenue or turnover be related to the pandemic with regard to determining whether a tenant is an “impacted lessee” for the purposes of various iterations of relevant COVID-19 regulations under the Retail Leases Act 1994 (NSW). The Appeal Panel also considered that the tenants were unlikely to be liable for costs for the landlords’ legal fees in respect of alleged rent defaults in May 2020. This was because the tenants may not be found to have been in default by reason of the non-payment of rent, or alternatively, because the recovery of legal costs in respect of the non-payment of rent during May 2020 may itself be found to be a “prescribed action” under the relevant COVID-19 regulation and therefore prohibited.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | Louridas v Askander [2021] NSWCATAP 261 Consumer and Commercial Division - Commercial R C Titterton OAM, Senior Member; D Fairlie, Senior Member
In sum: The Appeal Panel dismissed an appeal from the Consumer and Commercial Division in which the appellants sought to have consent orders set aside on the basis of a denial of procedural fairness. The Appeal Panel found that, in the context of the appellants being represented by their son, the Tribunal requesting that the son turn his phone off speaker so that the appellants were unable to hear the hearing in order to reduce background noise was not a denial of procedural fairness.
Facts: The appellants sought orders at the Tribunal under the Dividing Fences Act 1991 (NSW) in relation to fencing work being carried out on the boundary of the parties’ respective properties. The Tribunal made consent orders for the works, but the appellants appealed from part of the decision. The appellants’ principal ground of appeal is that they were denied procedural fairness in the conduct of the hearing because they were unable to listen to the hearing, the Tribunal Member having asked the appellants’ son, who represented them, to turn his phone off speaker to reduce the interference of background noise ([5], [7], [11], [20], [22]).
Held (dismissing the appeal):
(i) The consideration of whether the consent orders should be set aside arises in the context of the Tribunal facilitating discussions to narrow issues and explore settlement which resulted in the making of consent orders. When considering whether the conduct of the Member constituting the Tribunal is of a type which warrants the setting aside of orders made by that Member, the issue is one of “irregularity in procedure”. It is necessary to determine whether the irregularity is such to warrant intervention ([49]-[51]).
(ii) A Member’s conduct is to be considered in the context of the obligations imposed upon the Tribunal under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the manner in which those obligations are performed, and considered in the context of the role, or roles, the Member is to perform ([52]).
(iii) Where alternative dispute resolution processes are adopted and consent orders are consequentially made, the Tribunal is required to comply with its statutory and other obligations imposed at law, including those under s 38 of the NCAT Act. A failure to comply with these obligations is to be treated as an irregularity, the Tribunal being permitted to wholly or partly set aside a decision in proceedings when dealing with such irregularity ([53]-[54]).
(iv) Where an order is made by consent by the same Member who has assisted the parties in reaching a settlement agreement, this fact alone is not sufficient to give rise to an irregularity that might render such an order liable to be set aside. Rather, there must be some breach of the Tribunal’s procedural obligations which would give rise to a substantial injustice that should be corrected ([55]).
(v) In circumstances where the appellants were represented by their son, it is not a denial of procedural fairness that the appellants could not themselves hear what was being said in the hearing. There was no error of law or failure of the Tribunal to meet its procedural obligations ([61]-[63]). | Roach v Swain [2021] NSWCATAP 258 Consumer and Commercial Division - Tenancy M Harrowell, Deputy President; J McAteer, Senior Member
In sum: The Appeal Panel allowed an appeal from the Consumer and Commercial Division because the Tribunal had failed to adjourn the proceedings. The Appeal Panel found that the Tribunal should have adjourned because the appellants were not notified of, and were unaware of, the proceedings, and were consequently unprepared and unable to present their case.
Facts: The appellants were landlords who entered into a residential tenancy agreement with the respondent tenant. The tenant commenced proceedings alleging excessive rent and a failure by the landlord to carry out repairs; consent orders were made prior to the hearing, but the Tribunal did order the landlords to pay compensation to the tenants in respect of mould and other defects to the property that the landlord had failed to repair. The award for damages was calculated by way of rent reduction ([1]-[3]).
The landlords were to be represented by their agent in the proceedings, however due to the agent taking leave and other agency staff failing to notify her of the hearing date, the landlords were called and asked to participate. The landlords said they were not aware of the proceedings and had no materials on hand, being at that time at work. The Tribunal nevertheless proceeded with the hearing, noting that the landlords had made submissions; these submissions were for a separate proceeding between the parties, but were nonetheless relevant ([27]).
The landlords appealed on the basis that: (i) they were not notified of the hearing and were unable to file the relevant evidence due to various failures of the agent; and (ii) they disputed findings that repairs had not been carried out, and the cause of the mould ([6]).
Held (allowing the appeal):
(i) It is well established that refusal to grant an adjournment may give rise to procedural unfairness ([28]).
(ii) Referring to the former Consumer Trader and Tenancy Tribunal in Italiano v Carbone & Ors [2005] NSWCA 177 at [106], the Court of Appeal said that provisions in the constituting Act allowing the Tribunal a significant degree of flexibility in its procedures should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness ([29]).
(iii) The Tribunal should have adjourned the proceedings. The landlords did not have notice of the hearing, did not have the documents submitted on their behalf by the agent for the purpose of the hearing, and did not have other evidence to which the landlords wished to refer. The landlords were unable to proceed in the absence of this material. The disadvantage to the landlords was not ameliorated by any steps taken by the Tribunal ([30]-[32]).
(iv) As the problems arising in this case arose, in part, from the failure of the agent to properly represent the landlords, keep the landlords informed of the directions, review notices from the Tribunal and ensure that the appointed representative attended on the day of the hearing, leave for the landlords to be represented by the agent was revoked ([39]). | Barsoum v Chief Commissioner of State Revenue [2021] NSWCATAP 266 Administrative and Equal Opportunity Division Hennessy ADCJ, Deputy President; J S Currie, Senior Member
In sum: The Appeal Panel refused leave to appeal and dismissed the appeal from a costs order of the Tribunal, which ordered the appellant to pay the respondent’s costs of and incidental to the proceedings.
Facts: The appellant sought administrative review of the respondent’s decision in relation to land tax payments, and the Tribunal upheld the respondent’s decision in the substantive proceedings. In the costs proceedings, the Tribunal found that “special circumstances” existed in accordance with s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and ordered the appellant to pay the respondent’s costs of and incidental to the proceedings. The appellant appealed ([2]-[3]).
Held (refusing leave to appeal and dismissing the appeal):
(i) Because the appellant did not appeal from the substantive decision, he was unable to agitate grounds in relation to that decision in an appeal from the costs decision ([28]).
(ii) There was no denial of natural justice in the Tribunal’s decision to make a costs decision “on the papers” pursuant to s 50(2) of the NCAT Act, because the Tribunal afforded the appellant the opportunity to make submissions as to whether a hearing should be dispensed with, and the appellant did not avail himself of that opportunity ([30]-[33]).
(iii) The making of a costs order is not dependent upon the substantive proceedings being of a complex nature. This is merely one factor to consider, pursuant to s 60(3)(d). A finding that one or more of the “special circumstance” factors set out in s 60(3) have been made out does not necessarily mean that there are special circumstances warranting an award of costs. It remains necessary for the Tribunal to consider whether those circumstances are sufficient to amount to “special circumstances” that justify a departure from the ordinary rule that each party bear its own costs ([41]-[42]).
(iv) Where a court or tribunal has a discretion to award costs, that discretion must be exercised judicially and not capriciously. The fundamental rationale for the awarding of costs is that such an award is compensatory and not punitive. The Tribunal found that the appellant’s application for administrative review was so obviously lacking in merit that any reasonable person in the appellant’s position would have recognised that it was bound to fail. Having come to that view, it was not “harsh and unconscionable” or “capricious” of the Tribunal to exercise the discretion to make a costs order ([43]-[44]).
(v) While “special circumstances” need not be extraordinary or exceptional, they must be “out of the ordinary”. There was no error in the Tribunal’s conclusion that it was at least “out of the ordinary” for the appellant to apply for a review of the respondent’s decision when his application lacked merit ([45]).
(vi) The Tribunal did not err by taking into account forbidden considerations. It was open to the Tribunal to consider the fact that the respondent had alerted the appellant, both before and during proceedings, to the fact that he would seek costs if the appellant proceeded with the substantive proceedings. In determining “special circumstances” the Tribunal may have regard to the range of considerations listed in s 60(3) and “any other matter that the Tribunal considers relevant”. It was also open to the Tribunal to consider the fact that the appellant had been admitted as a lawyer for ten years ([48]-[52]).
(vii) The Tribunal did not fail to take into account the objects of the NCAT Act in s 3, regarding the accessibility and responsiveness to the needs of users of the Tribunal, or the need to resolve the real issues justly, quickly and cheaply and with as little formality as possible. A costs order as provided for by s 60 is not inconsistent with these objects ([55]).
(viii) The imbalance of power between the parties, in terms of the respondent’s position, power and resources versus those of the appellant, is not a relevant consideration which the Tribunal was bound to take into account when exercising the discretion to award costs ([57]). | Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 Administrative and Equal Opportunity Division P Durack SC, Senior Member; Dr J Lucy, Senior Member
In sum: The Appeal Panel allowed an appeal from the Administrative and Equal Opportunity Division in which the Tribunal had overturned the appellant’s decision to cancel the respondent’s provider approval to act as a family day care service provider. The Appeal Panel found that, in making that decision, the Tribunal failed to provide adequate reasons and erred in law by failing to deal with the essence of the appellant’s case.
Facts: The appellant (the Secretary) cancelled the respondent’s provider approval to act as a family day care service provider, providing education and care to children in the homes of multiple individual educators. Following a history of interaction between the parties, the cancellation was made under s 31(e) of the Children (Education and Care Services) National Law (NSW) (the National Law), which allows cancellation where the provider has breached a condition of the provider approval, on the basis of the respondent’s systemic failures with regard to the safety of the premises and record-keeping ([1]-[3], [12]).
The Tribunal overturned the Secretary’s decision in administrative review proceedings and made orders in substitution imposing certain conditions by amending the provider approval. The Secretary appealed from the Tribunal’s decision, alleging the Tribunal failed to deal with the essence of the Secretary’s case, and provided inadequate reasons ([4]-[5]).
Held (allowing the appeal):
(i) The Tribunal’s reasons for decision are required to meet the minimum acceptable standard, rather than the optimal level of detail. In the present case, the Tribunal below failed to explain in its reasons the basis for its broad conclusion that the evidence did not satisfy the Tribunal that the multiple breaches alleged had been established. If, as the Appeal Panel believes it was, this was a conclusion that not all the breaches were established, although some were, the Tribunal did not identify which breaches were established and which were not, or the reasoning process which led to such conclusions. The Tribunal should have explained the basis for the broad conclusion that if there were breaches they were insufficient to warrant cancellation of the provider approval. The inadequacies are sufficient to warrant setting aside the decision ([97], [101]-[102], [105]).
(ii) The Secretary’s case was founded upon the seriousness, extent, location and timing of the alleged breaches, but the reasons disclose that the Tribunal did not grapple with a case of this nature. Without such findings, the Tribunal could not sensibly address the questions whether the breaches had been rectified, or, where rectified, whether what had occurred disclosed a systemic failure by the respondent to meet its responsibilities. It was not sufficient for the Tribunal simply to mention the breaches identified by the Secretary as being of the most serious concern. Further, the Secretary established a “Breaches Schedule” which was of central importance to its case, and the respondent adopted the significance of this evidence; however the Tribunal failed to follow the path set out by that document, and make the findings necessary for its broad conclusions. The nature and scope of the deficiency of reasons led the Appeal Panel to conclude that the Tribunal erred in law by failing to deal with the essence of the Secretary’s case ([107]-[108], [110]-[112]). | Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287 Consumer and Commercial Division - Home Building R C Titterton OAM, Senior Member; D Fairlie, Senior Member
In sum: The Appeal Panel allowed an appeal from a decision of the Consumer and Commercial Division, which had failed to allow the appellant the opportunity to cross-examine the respondent and her witness. This constituted procedural unfairness amounting to a practical injustice.
Facts: The appellant appealed from a decision of the Consumer and Commercial Division regarding a consumer claim, on the basis that the appellant had not been allowed to cross-examine the respondent or her witness.
Held (allowing the appeal):
(i) The right to cross-examine is important, and restricting it can constitute a breach of procedural fairness. The Tribunal has an obligation to ensure that the parties have an opportunity to be heard, and to apply the rules of natural justice or procedural fairness, pursuant to s 38(2) and s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). This includes an obligation to explain to a party about cross examination and allow a party to cross-examine witnesses, if appropriate ([50]-[51]).
(ii) However, even a direction that there is to be no cross-examination may not amount to a denial of procedural fairness. Rather, what must be considered is whether the party complaining has in fact been denied a relevant opportunity in all the circumstances. The focus of the law in any enquiry about procedural fairness is not on fairness in an abstract sense, but rather on avoiding practical injustice. The central question is whether the lack of an opportunity to cross-examine resulted in a practical injustice ([52]-[53]).
(iii) The appellant was told the respondent’s expert witness was not available for cross-examination, and when the appellant stated a number of issues at the hearing which it wished to question the respondent about, the respondent replied directly with no official cross-examination. The Tribunal then adjourned to allow the parties to try and resolve the dispute. Some minutes later, the Tribunal resumed, and concluded the hearing. The failure to allow the appellant to cross-examine the respondent and her witness in these circumstances amounted to a practical injustice in the sense described above ([46]-[47], [54]). | Cong v Ning [2021] NSWCATAP 292 Consumer and Commercial Division - Commercial T Simon, Principal Member; D Robertson, Senior Member
In sum: The Appeal Panel allowed an appeal in part from a decision of the Consumer and Commercial Division. The Appeal Panel found that the there was no requirement that a reduction in revenue or turnover be related to the pandemic with regard to determining whether a tenant is an “impacted lessee” for the purposes of various iterations of relevant COVID-19 regulations under the Retail Leases Act 1994 (NSW). The Appeal Panel also considered that the tenants were unlikely to be liable for costs for the landlords’ legal fees in respect of alleged rent defaults in May 2020. This was because the tenants may not be found to have been in default by reason of the non-payment of rent, or alternatively, because the recovery of legal costs in respect of the non-payment of rent during May 2020 may itself be found to be a “prescribed action” under the relevant COVID-19 regulation and therefore prohibited.
Facts: The appellants were tenants of the respondent landlords. Following the expiry of the lease, the landlords applied to the Tribunal seeking payment of rental arrears and compensation for alleged breaches of the lease involving the sub-letting of car spaces and legal costs claimed to be payable pursuant to the terms of the lease. The rental arrears involved rent not paid in 2017, 2018 and May 2020. The tenants also made an application at the Tribunal, seeking orders that they did not have to pay amounts claimed by the landlords and for the return of the bond ([1]-[3]).
The appellants claim they were impacted tenants pursuant to the COVID-19 regulations under the Retail Leases Act 1994 (NSW), and claim the dispute started when, suffering financial difficulties, they sought a rent reduction. The respondents claimed the payment of the full amount was deferred, not waived. The appellants allege that the respondents’ claim in respect of May 2020 was a “prescribed action” and prohibited under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) ([4]-[5]).
The Tribunal dismissed the respondents’ compensation claim in relation to the sub-letting of the car spaces, but awarded the respondents amounts for: rent not paid between June 2017 and May 2018; rent not paid in May 2020; solicitors’ costs incurred by the respondents as a consequence of the appellants’ defaults under the lease; and mediation costs in the present proceedings. The appellants appealed on three grounds: that the Tribunal applied the incorrect test by finding that because the appellants were not eligible for JobKeeper, they were not “impacted lessees”; that the Tribunal failed to recognise the respondents had agreed to waive a rent increase when determining the appellants were liable for rent arrears; that the Tribunal should not have ordered the appellants to pay the respondents’ legal and mediation costs ([8]-[9], [19]).
Held (allowing the appeal in part):
Ground 1 – The Tribunal applied an incorrect test in determining that the appellants were not eligible for the JobKeeper wage subsidy during the pandemic and consequently the appellants were not “impacted lessees” for the purposes of the relevant regulations
(i) There was no requirement for JobKeeper eligibility that a reduction in revenue or turnover be related to the pandemic. The term “impacted lessee”, as defined in reg 4(1) of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), relates to a reduction in revenue of at least 30%, but there is no requirement that such a decline in turnover be related to COVID-19 ([32]).
(ii) The respondent landlords did not point to any relevant legislative provision to suggest that the receipt of Jobseeker payments was necessarily inconsistent with the receipt of payments under the JobKeeper scheme during the same period. In any event, the second appellant had been receiving JobKeeper payments during periods when there was no evidence to suggest she was also receiving Jobseeker. In particular, the second appellant was not receiving Jobseeker during May 2020 when the appellant tenants ceased to pay rent ([33]-[34]).
(iii) It was sufficient that one of the tenants was eligible for payments under the JobKeeper scheme. Under the JobKeeper Rules, as in force in May 2020, where a business was conducted as a partnership, a partner in the partnership was entitled to claim JobKeeper as an “eligible business participant”, but only one partner was able to do so (see cll 11(3) and 12(2) of the JobKeeper Rules). Where a business was conducted by joint tenants in partnership it would therefore not have been possible for both tenants to quality for the JobKeeper scheme. The definition of “impacted lessee” should not be interpreted so as to exclude businesses conducted as a partnership. It follows that it cannot be said to be necessary that both of two joint tenants must establish that they qualify for JobKeeper before the lease can be described as an “impacted lease” and the tenants as an “impacted lessee”. The tenants did not claim that they were conducting business in partnership; rather they asserted that the second appellant was conducting business at the premises as a sole trader. The second appellant qualified for JobKeeper. There was no reason why her co-tenant should also be required to qualify for JobKeeper in order that the appellants qualify as an impacted lessee ([35]-[36]).
Ground 2 – Rent arrears
(iv) The Tribunal’s finding that the parties had agreed to defer payment of the rent increase rather than waive it was a finding of fact. There is nothing to suggest that this finding was against the weight of evidence or not fair and equitable ([55]-[58]).
Ground 3 – Payment of legal and mediation costs
(v) According to the residential tenancy agreement signed by the parties, the lessee must pay to the lessor the reasonable cost incurred by the lessor of remedying a default by the lessee, and, if the lessee defaults, the lessor’s reasonable legal costs relating to the default ([64]).
(vi) As the Appeal Panel set aside the findings of the Tribunal in relation to the tenants’ failure to pay rent for May 2020, it is possible that at least part of the landlords’ legal costs will not be recoverable pursuant to the agreement. This was because the tenants may not be found to have been in default by reason of the non-payment of rent, or alternatively, because the recovery of legal costs in respect of the non-payment of rent during May 2020 may itself be found to be “prescribed action”. The same position will apply with respect to the claim for mediation costs. The matter was remitted to the Consumer and Commercial Division to decide the appellants’ costs liability ([66]-[67]). | | | Roach v Swain [2021] NSWCATAP 258 Consumer and Commercial Division - Tenancy Decision of: M Harrowell, Deputy President; J McAteer, Senior Member Catchwords: ADMINISTRATIVE LAW – procedural fairness and natural justice – obligation to grant adjournment | EMG Stone Pty Ltd v Gonda [2021] NSWCATAP 259 Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member; J Kearney, Senior Member Catchwords: APPEAL – from finding of fact – whether against weight of evidence – whether substantial miscarriage of justice | Awad v 316 Plumbing Pty Ltd [2021] NSWCATAP 260 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 | Louridas v Askander [2021] NSWCATAP 261 Consumer and Commercial Division - Commercial Decision of: R C Titterton OAM, Senior Member; D Fairlie, Senior Member Catchwords: CIVIL PROCEDURE – hearings – procedural fairness – appellants unable to listen to the hearing – whether this amounted to a failure to give informed consent to consent orders ENVIRONMENT AND PLANNING — fences and boundaries — dividing fence – no prior notice served pursuant to s 11 of the Dividing Fences Act – leave granted to subsequently serve notice – discretionary decision – no error demonstrated | Boughen v Kumar & Paentia (No 2) [2021] NSWCATAP 262 Consumer and Commercial Division - Tenancy Decision of: L Wilson, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – costs – appeal upheld in part -leave to appellant apply to seek costs of appeal - appellant filed submissions seeking costs - no submissions filed by respondent opposing application for costs - special circumstances - apportionment of costs - evidence of costs - costs modest - gross sum costs order | Secretary, NSW Department of Education v Gabriel’s Family Day Care Pty Ltd [2021] NSWCATAP 263 Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; Dr J Lucy, Senior Member Catchwords: ADMINISTRATIVE LAW-Children (Education and Care Services) National Law – cancellation of provider approval – whether s 31 (e) ground for cancellation included breach of condition to comply with National Law imposed by s 19 (2) – multiple alleged breaches – whether systemic failure to comply with condition of provider approval – whether alleged breaches established – whether alleged breaches sufficient to warrant cancellation of provider approval – whether Briginshaw principle applicable APPEAL – adequacy of reasons – whether the Tribunal erred in failing to deal with the essence of the case for cancellation | Gittany v Kesuma [2021] NSWCATAP 264 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; M Gracie, Senior Member Catchwords: APPEAL — NCAT— appeal from decision of Consumer and Commercial Division - appellant failed to comply with work order - application by respondent to renew proceedings to claim a money order - at the date of the hearing for the money order the property the subject of the work order had been sold - Money order made - proper approach to allowing rectification damages after sale of property - appellant claimed renewal application misconceived as no loss suffered - alleged abuse of process - alleged denial of procedural fairness | My Energy Group Pty Ltd v Doan [2021] NSWCATAP 265 Consumer and Commercial Division - Home Building Decision of: Cowdroy ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – procedure – directions requiring production of audio recording – audio recording and transcript not available for hearing – inability of appeal to be heard in the absence of reasons – appellant unable to access audio due to Covid limitations – hearing adjourned subject to conditions until audio recording is available | Barsoum v Chief Commissioner of State Revenue [2021] NSWCATAP 266 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; J S Currie, Senior Member Catchwords: APPEAL – costs – where Tribunal found the applicant’s application for review of an administrative decision to be without merit – whether findings amount to special circumstances warranting an award of costs under s 60 of the Civil and Administrative Tribunal Act 2013 - proceedings misconceived or lacking in substance- relative strength of the parties’ claims- no tenable basis in fact or law | Ali Soukarie t/as A1 SKR Concrete v Krallis [2021] NSWCATAP 267 Consumer and Commercial Division - Home Building Decision of: K Ransome, Senior Member; R C Titterton OAM, Senior Member Catchwords: APPEAL – building claim – decision said to be against the weight of the evidence – no substantial miscarriage of justice – leave to appeal refused | | Katsiotis v Rogers [2021] NSWCATAP 269 Consumer and Commercial Division - Tenancy Decision of: G Blake AM SC, Senior Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — whether landlord is liable for compensation APPEALS – whether lave to appeal should be granted | Taylor v The Owners SP No 61285 [2021] NSWCATAP 270 Consumer and Commercial Division - Strata Decision of: R C Titterton OAM, Senior Member; J McAteer, Senior Member Catchwords: APPEAL – failure to bring originating application within a reasonable time – failure of Tribunal to consider arguments not put to it where litigant self-represented – matters raised on appeal not raised before Tribunal at first instance | B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory Warranties – Duty to mitigate loss – Section 18BA – Duty to provide access – Extent of duty to provide access to attempt rectification of defective windows which had previously been removed and replaced – Breach of statutory warranties – Measure of compensation – Onus lies on applicant to establish that building costs incurred were required in order to bring the work into conformity with the contract | LSH Auto (Sydney) Pty Ltd v Sherman (No 2) [2021] NSWCATAP 272 Consumer and Commercial Division - Motor Vehicles Decision of: G Curtin SC, Senior Member; D Charles, Senior Member Catchwords: CONSUMER LAW — consumer guarantees — supply of goods — guarantee as to acceptable quality – evidence established vehicle did not contain any defect - evidence insufficient to establish vehicle not of acceptable quality in context of inherent limitations in the vehicle’s systems the subject of complaint | Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – appeal from decision of Consumer and Commercial Division of NCAT - calculating three year time limit for bringing application for defective home building works under the Home Building Act - breach of contract - no claim for breach of statutory warranties - Tribunal found time runs from date of occupation certificate - alternative claim by respondent that time runs from date of practical completion - error of law - inadequate reasons - fresh evidence - time runs from the date on which the supply of goods and services was last made | Jandson Pty Ltd v James [2021] NSWCATAP 274 Consumer and Commercial Division - Home Building Decision of: K Rosser, Principal Member; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranties - Application made outside statutory warranty period for original contract – Whether new contract entered into or original contract varied – Offer and acceptance – Consideration – Forbearance to sue – Completion date | Kincumber Nautical Village Pty Ltd v Morris & Ors [2021] NSWCATAP 275 Consumer and Commercial Division - Residential Communities Decision of: K Ransome, Senior Member; D Robertson, Senior Member Catchwords: APPEAL – residential land lease community – rent increase by a fixed method – whether a formula which includes a number of components added together is “a fixed method” – meaning of a fixed method - meaning of a fixed calculation | Ly v Super Demolitions Pty Ltd [2021] NSWCATAP 276 Consumer and Commercial Division - Consumer Claim Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: APPEAL - adequacy of reasons – whether the Tribunal engaged with the cases of each party | Batemans Bay Carwash Pty Ltd v Suntech Solar Pty Ltd [2021] NSWCATAP 277 Consumer and Commercial Division - Consumer Claim Decision of: T Simon, Principal Member; D Ziegler, Senior Member Catchwords: CONSUMER CLAIM - jurisdiction of Tribunal – amendment of claim – submission to Tribunal’s jurisdictional limit – procedural fairness - order dispensing with a hearing – hearing on the papers | | CCS 251 Elizabeth St Pty Ltd v Hellenic Club Ltd [2021] NSWCATAP 279 Consumer and Commercial Division - Commercial Decision of: M Harrowell, Deputy President; A Bell SC, Senior Member Catchwords: LANDLORD AND TENANT – Retail Lease – tenant’s failure to pay rent – breach of essential term – entitlement of landlord to re-enter premises – construction of lease term regulating right to effect re-entry – collateral right to accept repudiation by effecting a re-entry | Germaine v Plunkett [2021] NSWCATAP 280 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; D Charles, Senior Member Catchwords: ADMINISTRATIVE LAW — hearing rule — notice — particulars of case against applicant – evidence to be relied upon to be served before hearing – procedural unfairness – requirements of natural justice depends on the circumstances – no procedural unfairness because Tribunal’s decision did not depend on the evidence not served before the hearing LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent — excessive rent – reduction or withdrawal of services or facilities – no reduction or withdrawal – question of fact – no error or law or otherwise in making findings of fact | Leahy v Watermin Drillers Pty Ltd [2021] NSWCATAP 281 Consumer and Commercial Division - Consumer Claim Decision of: Cowdroy ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL - written contract for water drilling – oral variation – whether Tribunal erred in preferring oral evidence of contractor – appellant claiming denial of natural justice due to lack of waterflow evidence – no expert evidence provided before Tribunal of waterflow to support appellant’s claims – appeal dismissed | Tang v Mawad Group Pty Ltd [2021] NSWCATAP 282 Consumer and Commercial Division Decision of: K Ransome, Senior Member; S Goodman SC, Senior Member Catchwords: APPEAL – appeal from exercise of discretion fixing the amount of costs to be paid - acting on a wrong principle - failure to consider relevant considerations – unreasonableness - adequacy of reasons – indemnity costs | | Vidler v Compass Housing Services Co Ltd [2021] NSWCATAP 284 Consumer and Commercial Division - Social Housing Decision of: G Curtin SC, Senior Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — social housing — termination of social housing agreements – intentional or reckless causing of serious damage – state of mind required for intentional or reckless causing of serious damage - mandatory requirement for a termination order unless a relevant person would suffer undue hardship by the making of a termination order – matters to be considered in relation to undue hardship | | Vergios v Mazda Australia Pty Ltd [2021] NSWCATAP 286 Consumer and Commercial Division - Motor Vehicles Decision of: T Simon, Principal Member; G Sarginson, Senior Member Catchwords: CONSUMER LAW---Consumer guarantees---Acceptable quality---Whether decision against weight of evidence---Causation---Whether correct legal test applied | Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287 Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; D Fairlie, Senior Member Catchwords: PROCEDURAL FAIRNESS — failure to allow cross-examination APPEALS — leave to appeal — whether decision against the weight of evidence | Seymour v Wu [2021] NSWCATAP 289 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; G Sarginson, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination — by landlord – authority of agent – landlord a foreign resident – subsequent District Court proceedings between the same parties – no question of principles | | De Marco v Macey [2021] NSWCATAP 291 Consumer and Commercial Division - Home Building Decision of: T Simon, Principal Member; G K Burton SC, Senior Member Catchwords: Home building – alleged procedural unfairness – alleged inadequate consideration of evidence - no issue of principle | Cong v Ning [2021] NSWCATAP 292 Consumer and Commercial Division - Commercial Decision of: T Simon, Principal Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Retail leases – Rent and outgoings –- Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) - Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) – Whether tenant an “impacted lessee” – Operation of regulations in relation to “impacted lessees” WORDS AND PHRASES – “impacted lessee” | Foyel v Brukmann [2021] NSWCATAP 293 Consumer and Commercial Division - Tenancy Decision of: L Wilson, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Agreement during COVID-19 pandemic to defer part of rent, to be repaid when tenants’ financial position had improved – Terms for repayment not specified – Implied term that terms would be reasonable LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) – Rental bonds - Orders in relation to the payment of a bond – Whether the Tribunal has a discretion in relation to the payment of a bond – Possible impact on tenant when seeking alternative accommodation of not receiving the whole bond not a relevant consideration | Foong v Scutella [2021] NSWCATAP 294 Consumer and Commercial Division - Strata Decision of: S Westgarth, Deputy President; J Currie, Senior Member Catchwords: APPEAL – NCAT – costs – special circumstances – nature and complexity of proceedings | Vasales v Li [2021] NSWCATAP 295 Consumer and Commercial Division - Tenancy Decision of: K Rosser, Principal Member; R C Titterton, Senior Member Catchwords: LEASES AND TENANCIES – Residential tenancies – no question of principle – meaning of s 51(3) of the Residential Tenancies Act 2010 (NSW) | Day v Quince’s Quality Building Services Pty Ltd [2021] NSWCATAP 296 Consumer and Commercial Division - Home Building Decision of: Coleman ADCJ, Principal Member; R C Titterton OAM, Senior Member Catchwords: BUILDING AND CONSTRUCTION – construction and interpretation of home building contract – cl 14 of the BC4 Residential Building Contract – whether Tribunal erred in interpretation and application of the clause | | | 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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