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| NCAT Appeal Decisions Digest July 2019 Decisions
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The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down during July 2019. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165, in which the Appeal Panel found that the respondent council did not supply the waste management services in the course of carrying on a business but rather, in the exercise of a governmental function. Therefore, the conduct could not be the subject of a consumer claim under the Fair Trading Act 1987 (NSW).
- Kings v Chand [2019] NSWCATAP 180, where the Appeal Panel held that s6.9 of the Environmental Planning and Assessment Act 1979 (NSW) (previously s109M) required a current occupation certificate, in addition to a complying development certificate, before the subject premises could be occupied or used. The landlord’s failure to obtain the requisite occupation certificate was a breach of a landlord’s obligation under s49(1) of the Residential Tenancies Act 2010 (NSW) to ensure there was no legal impediment to the residential occupation of the premises.
- DKP v Children’s Guardian [2019] NSWCATAP 185, in which the Appeal Panel determined that the application required the exercise of administrative and not judicial power so no jurisdictional issue arose under s75(iv) of the Constitution. The Tribunal’s power under s16 of the Child Protection (Offenders Registration) Act 2000 (NSW) is limited to suspending the registrable person’s reporting period and not to otherwise exempt them from reporting obligations.
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| Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165
Consumer and Commercial Division - General
Armstrong J, President; S Westgarth, Deputy President
The appellant owns a property in the local government area of the respondent council. The appellant sought to recover the sum of $141.00 from the respondent which had been charged for “waste management” and for “onsite sewerage management system”. The appellant claims that the respondent charged him for a service which they did not provide to him ([1]-[2]).
At first instance, the Tribunal only considered the issue of whether it had jurisdiction by virtue of the matter being a consumer claim under Part 6A of the Fair Trading Act 1987 (NSW) (FT Act) ([3]). The Tribunal considered that s501(1) of the Local Government Act 1993 (NSW) (LG Act) permitted the provision of the activities charged by the respondent as a charge. The Tribunal also distinguished between a charge under s501 and rates under s497 of the LG Act. The Tribunal found that the services the respondent provided were done in the exercise of the respondent’s exercise of functions as a local authority and not in the course of the carrying out of a business. The Member held that the activities, the subject of the charges, did not come within the definition of “services” under s79F of the FT Act, and the references in the LG Act to “services” fall outside this meaning. The respondent’s responsibility for waste management services and onsite sewerage services are not charges by a fee for service but rather, by an annual levy incurred irrespective of whether the ratepayer makes use of that service. Finally, the Tribunal found that the claim was not a consumer claim as the charge for services was not a charge made in the course of a business undertaking ([10], [23]).
The grounds of appeal (as stated by the Appellant) were ([11]):
- “The Tribunal considered irrelevant legislation;
- The Tribunal did not identify any legislative provision that shows that the respondent is charged with the responsibility to provide waste management services and onsite sewerage services. Rather, the respondent has a discretion – see s24 of the LG Act;
- The Tribunal accepted that the respondent can impose a charge for a service by way of an annual levy irrespective of whether the ratepayer uses the services, despite s501 of the LG Act stipulating that a charge can only be made for services provided or to be provided. It does not allow charges for services made available or to be available;
- There is no provision in the LG Act making (5) The Tribunal failed to consider or find that the respondent could be both carrying on a business and performing statutory obligations.”
(i) The respondent did not supply the services in question whilst carrying on (or purporting to carry on) a business. The respondent is not a “supplier” within the meaning of s79D of the FT Act. Therefore, the appellant’s claim is not a consumer claim ([18]). The Federal Court in JS McMillan Pty Ltd & Ors v Commonwealth of Australia (1997) 77 FCR 337; [1997] FCA 619 considered: “The expression “carry on business”, in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts and not simply the effecting of one solitary transaction”. A system and regularity of transactions are indicative but not determinative of the carrying on of a business ([20]).
The Victorian Court of Appeal in Murphy v State of Victoria & Anor [2014] VSCA 238 agreed with the above. The Court of Appeal held that:
“For activities to constitute “carrying on a business“, the activities must be undertaken in a commercial enterprise or as a going concern. The activities must constitute trade, or commercial transactions or engagements. A business activity is an activity which takes place in a business context and which, of itself, bears a business character."
The Court distinguished between purely governmental or regulatory government functions and government functions that involve the carrying on of business. The Court of Appeal also held ([22]):
“The carrying out of a function of government in the interests of the community, such as the performance of a statutory function (including one in respect of which fees may be charged), is not the carrying on of a business. That the purpose of the activities is the provision of governmental services will tend against a conclusion that they amount to the carrying on of a business.
There must be present some element of commerce or trade such as a private citizen or trader might undertake”.
(ii) In order for the Tribunal to determine a consumer claim under Part 6A of the FT Act, the supply of goods or services must be by a supplier. A supplier under s79D of the FT Act means a person who “in the course of carrying on (or purporting to carry on) a business, supplies goods or services” ([24]).
(iii) The onsite sewerage management system approval charge arose in relation to the council’s obligation to consider applications for approval under s68 of the LG Act, and the council’s requirement to maintain a record under s113 of that Act. The effect of these provisions is that the services are governmental or regulatory and are not performed in the carrying out of a business ([31]).
(iv) The waste management charge arose out of the exercise by the council of a discretionary function under s24 of the LG Act. The facilities are made available rather than provided to the appellant and to all ratepayers who will use the services to differing degrees. The provision of these facilities cannot be characterised as the respondent engaging in commercial activity such that it is carrying on a business ([32]). It is necessary to consider the characteristic of the service in its entirety to determine whether it is provided in the course of the conduct of a business. The mere fact that the respondent has a discretion of whether to engage in certain activities does not mean that the service is provided by the respondent conducting a business. The services provided under s24 of the LG Act must be “appropriate to the current and future needs within its local community and of the wider public” and “do not have the character of a commercial enterprise or a business character” but “the character of the performance of a statutory function” ([34]).
(v) Nothing turns on the fact that the Tribunal’s decision referred to the Australian Consumer Law (ACL) because the decision was not based on the ACL. The irrelevant references to the ACL have no effect on the decision to dismiss the application ([36]).
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| Kings v Chand [2019] NSWCATAP 180
Consumer and Commercial Division - Tenancy
A Britton, Principal Member; K Ransome, Senior Member
The landlord, Greg Kings, entered into a residential tenancy agreement with the tenant, Shaveen Chand on 10 July 2018 in relation to a two-bedroom “granny flat” at the back of a three-bedroom house. The agreement was for a six month fixed term to end on 8 January 2019. At the time of entering into this agreement, the landlord had not obtained an occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). An occupation certificate had been issued in respect of a previous tenant of the property on 30 May 2016. The parties disputed whether the wall between the granny flat and the house complied with the requirements of the EPA Act and the Building Code of Australia. On 3 October 2018, the tenant informed the landlord that he intended to terminate the agreement and vacated the premises on 5 October 2018 ([1]-[3], [12]).
The tenant applied to the Tribunal seeking the return of the bond and repayment of rent and utilities paid under the agreement on the basis that the agreement was unlawful. The tenant also sought a “break fee” of $2,250 ([4]).The Tribunal at first instance found that the agreement was void and unenforceable because the landlord had not obtained an occupation certificate. It can be implied that the Tribunal also found that the landlord contravened s49(1) of the Residential Tenancies Act 2010 (NSW) (RT Act) ([1], [11]-[14], [31]). The Tribunal ordered the landlord to pay back to the tenant the rent and utilities charges paid under the agreement ([14]). The landlord appealed that decision.
The landlord’s grounds of appeal that raise an issue of law are ([7]):
1. The Tribunal misapplied the EPA Act when it concluded that it was necessary that an “occupation certificate” be issued in respect of the premises before the commencement of the agreement. 2. The Tribunal misapplied the EPA Act and the RT Act in deciding that the landlord had contravened s49(1) of the RT Act. 3. The Tribunal erred in deciding the agreement was void because it was illegal.
Held (allowing the appeal in part):
(i) Section 109M(1) of the EPA Act in force in 2016 required an occupation certificate to be issued in relation to the building or part of it before a person could commence occupation or use of the building or part respectively. Section 109M(2)(b) of the EPA Act then in force provided that this restriction did not apply once 12 months has expired since the first occupation or use of the building. The EPA Act as amended, with s109M renumbered to s6.9, does not contain an equivalent to s109M(2)(b) of the previous Act. As at July 2018 an occupation certificate was required under s6.9 for “the commencement of a change of building use for the whole or any part of an existing building”. On 17 May 2018 a complying development certificate was issued authorising the change of the property from use as a single dwelling to use of the granny flat as a secondary dwelling. The earlier certificate was issued in respect of the premises being used as a “single dwelling”. As at July 2018, the granny flat was not permitted to be occupied under the earlier occupation certificate because the use had changed. Further, although 12 months had elapsed since the dwelling was first occupied, the exemption in s109M(2)(b) of the EPA Act did not apply because of the legislative amendments effectively repealed that exemption. A new and current occupation certificate was required but had not been obtained ([15]-[23]).
(ii) The complying development certificate allowed part of the existing dwelling house to be used for a “secondary dwelling”. This certificate was issued under the State Environmental Planning Policy (Affordable Rental Housing) 2009 ([25]-[26]). The complying development certificate authorised the change of use but not the commencement of the change of use. Accordingly, this did not remove the requirement for an occupation certificate ([24]-[30]).
(iii) Section 49 of the RT Act requires a landlord to “take all reasonable steps to ensure that, at the time of entering into the residential tenancy agreement, there is no legal impediment to the occupation of the residential premises as a residence of the period of the tenancy” ([31]). This is an objective determination. The landlord was aware of the problem of using the granny flat as a separate dwelling. It would have been a reasonable step to ensure there was no legal impediment to occupation at the time of entering into a residential tenancy agreement to obtain an occupation certificate. The landlord’s failure to do so contravened s49(1) of the RT Act. The Tribunal did not misapply the provision ([32], [35]).
(iv) The Tribunal erred in determining that the agreement was void and unenforceable ([43]). The EPA Act did not expressly prohibit the making of the agreement the subject of this dispute. The Appeal Panel in ZID v Green [2018] NSWCATAP 198 citing Gnych v Polish Club Limited [2015] HCA 23 set out the principles for determining whether an agreement is prohibited by an Act and if for reasons of statutory illegality the agreement is unenforceable ([38]-[39]). In summary, these principles are:
- Illegality is to be determined by considering the relevant statute(s) and the common law
- A non-exhaustive list of categories in which an agreement may be unenforceable for statutory illegality are:
“(i) the making of the agreement or the doing of an act essential to its formation is expressly prohibited by the statute (absolutely or conditionally);
(ii) the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute;
(iii) the agreement is not expressly or impliedly prohibited by statute but is treated by the courts as unenforceable because it is a ‘contract associated with or in the furtherance of illegal purposes’; and - Factors that tend against a finding that a contract is null and void are:
(i) “The adverse effect of such a consequence on innocent parties”; and
(ii) “The provision in the statute of other means to sanction and remedy the illegality apart from nullification of agreements.”
The Appeal Panel was “reluctant to express a concluded view on whether the making of the agreement was impliedly prohibited” by the EPA Act for statutory illegality in the absence of argument on this point ([41]).
(v) The Tribunal’s order that the landlord pay the tenant $5,200 for rent, water usage and gas is set aside because the agreement was not void and unenforceable ([45]).
(vi) The tenant was entitled to give a termination notice to the landlord due to the breach by the landlord of a clause of the agreement under s98(1) of the RT Act. Under s98(2) of the RT Act, the specified termination date must not be less than 14 days after the day notice is given. The tenant gave notice two days before the last day of rent was paid. This was insufficient notice. The landlord is entitled to compensation for loss caused by the abandonment of the premises by the tenant under s107 of the RT Act. The appropriate sum owed by the tenant to the landlord is the amount of 12 days rent ($642.85) and charges for utilities ($266.30) ([45]-[48], [52]).
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| DKP v Children’s Guardian [2019] NSWCATAP 185
Administrative and Equal Opportunity Division
S Cole DCJ, Deputy President; M Harrowell, Principal Member
DKP was convicted of, and sentenced to imprisonment for a number of offences including a Class 1 offence as defined in the Child Protection (Offenders Registration) Act 2000 (NSW) (Child Protection Act) (a very serious offence where a child was the victim). After serving a portion of his sentence for the Class 1 offence, DKP was released on parole. DKP became a “registrable person” within the meaning of the Child Protection Act ([1]). On 17 January 2019, DKP received a letter from the NSW Police Force informing him that following a review, it was decided that his reporting obligations were to continue until 24 November 2023. DKP did not expect his reporting obligations to last this long ([2]). DKP lived in Queensland when he made his initial application and continues to live there ([7]).
DKP made an application to the Tribunal, purportedly under s16 of the Child Protection Act, to be exempt from the reporting obligations. At first instance, the Tribunal refused to exempt DKP from the reporting obligations but suspended the reporting period for 137 days to reflect the time DKP spent overseas, when he was not under the supervision of relevant authorities ([3]-[5]).
The only ground of appeal is whether the Tribunal has the power under s16 of the Child Protection Act to exempt the appellant from his reporting obligations as a registrable person under that Act. That is, whether the Tribunal has a power additional to the ability to suspend those obligations for the period by which they were extended under s15(3) of the Act ([6], [18]).
Held (dismissing the appeal):
(i) Section 75(iv) of the Australian Constitution provides that the High Court has original jurisdiction in “all matters between States, or between residents of different States, or between a State and a resident of another State”. Under s71 of the Constitution, the Commonwealth’s judicial power can be vested in the High Court, other federal courts created by statute and other courts vested with federal jurisdiction. The Tribunal is not a Court so cannot be vested with federal jurisdiction (Burns v Corbett [2018] HCA 15 and Attorney-General for NSW v Gatsby [2018] NSWCA 254) ([20]-[22]).
The Children’s Guardian was joined as a party to the proceedings as required under s16(6) of the Child Protection Act ([23]-[26]). The Child Protection Act establishes “for the purpose of child protection” “an administrative system for the monitoring of a specified kind of offender for a period of time after such an offender has been sentenced or released from government custody” ([31]). DKP seeks an administrative decision of the Tribunal in respect of his obligations under this register. The application relates to the length of time the reporting obligations are to apply to him. This requires the Tribunal to interpret the provisions of the Child Protection Act that relate to the register, specifically what the obligations are and under what conditions they may be relaxed. An analogy can be drawn between the parole system, which has been held to be an administrative system (see Crump v New South Wales [2012] HCA 20), and the system of a register of reportable persons under the Child Protection Act. The application does not require the exercise of judicial power. Therefore, no jurisdictional issue arises under s75(iv) of the Constitution ([31]-[33]).
As the Appeal Panel considered this application to require the exercise of administrative power, it did not have to consider whether the matter should properly be characterised as a matter between a State and a resident of another State, and thus beyond the Tribunal’s jurisdiction ([23]). Whether or not the Children’s Guardian is the “State” for the purposes of s75 of the Constitution did not arise for determination.
(ii) DKP’s application is caught by the Tribunal’s general jurisdiction under s29(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). A “general decision” is a decision of the Tribunal in its general jurisdiction under s29(3) of the NCAT Act. Section 32(1) of the NCAT Act gives the Appeal Panel internal appeal jurisdiction in respect of a number of matters, including first instance general Tribunal decisions. Section 16(10) of the Child Protection Act provides that a party to proceedings under s16 may appeal from a decision of NCAT to the Supreme Court on a question of law. Thus, the Supreme Court and the Tribunal have concurrent jurisdiction where an appeal under s16 of the Child Protection Act raises a question of law. The current application raises a question of law ([35]-[38]).
(iii) Section 16 of the Child Protection Act provides the Tribunal’s only power to change a registrable person’s reporting obligations under that Act. Section 16 of the Child Protection Act only applies to DKP as a registrable person ‘whose reporting period has been extended under section 15(3)’ pursuant to s16(1)(b) because he is not a person who is required to report for the remainder of his life ([39]-[40]).
“The plain words of s16(3A) provide that the Tribunal’s power to change the reporting obligation of a person in DKP’s position is limited to suspending the reporting obligations for the length of time by which the registrable person’s reporting period was extended under section 15(3) of the Act; that is by the length of time for which they were absent from Australia and not subject to any reporting regime” ([41]).
The heading to the provision that “NCAT may exempt persons from compliance with reporting obligations” cannot be used to construe the provision as such headings are not taken to be part of the Act under s35(2) of the Interpretation Act 1987 (NSW). Therefore, the Tribunal does not have the power under the Child Protection Act to exempt DKP from his reporting obligations as a registrable person beyond suspending those obligations for the period they were extended under s15(3) of the Act ([42]-[45]).
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Coates Hire Operations Pty Ltd v Faour [2019] NSWCATAP 159
Consumer and Commercial Division - General
Decision of: S Westgarth, Deputy President; A Bell SC, Senior Member Catchwords: Appeal - Question of Law |
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Asia Invest Enterprises Pty Ltd v Bircan [2019] NSWCATAP 160
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; S Frost, Senior MemberCatchwords: APPEAL – Application for extension of time to lodge appeal – Length of delay – Reasons for delay – Prejudice to respondents - Prospects of success |
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Sewell v Bush [2019] NSWCATAP 161
Consumer and Commercial Division - Home Building
Decision of: S Cole DCJ, Deputy President; G Burton SC, Senior Member Catchwords: CONTRACTS – breach of contract – quantum of damages - procedural fairness |
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Phillip v Bell Solar Pty Ltd [2019] NSWCATAP 162
Consumer and Commercial Division - Home Building
Decision of: T Simon, Senior Member; AR Boxall, Senior Member Catchwords: CONSUMER CLAIM – error of law – s48MA – fair and equitable |
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Clarke v Bowen [2019] NSWCATAP 163
Consumer and Commercial Division - General
Decision of: The Hon J Armstrong, President; T Simon, Senior Member Catchwords: CONSUMER CLAIM – against the weight of evidence – fair and equitable – excessive damages |
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Dimitropoulos v Capitol Constructions Pty Ltd [2019] NSWCATAP 164
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Blake AM SC, Senior MemberCatchwords: APPEAL – Costs – r38 – r38A – indemnity costs |
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Seeto v The Owners Strata Plan No 49458 [2019] NSWCATAP 166
Consumer and Commercial Division - Strata schemes
Decision of: I Bailey AM SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – reallocation of strata unit entitlements – staged stepped analysis – failure to apply correctly |
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Commissioner of Police, New South Wales Police Force v Holdsworth [2019] NSWCATAP 167
Administrative and Equal Opportunity Division
Decision of: N Hennessy ADCJ, Deputy President; M Harrowell, Principal MemberCatchwords: APPEAL – interlocutory decision to extend time – whether leave should be granted to appeal – whether discretion miscarried |
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Shonroo Pty Ltd v Community Association DP 270482; Casuscelli v Community Association DP 270482 and Shonroo Pty Ltd [2019] NSWCATAP 168
Consumer and Commercial Division - Community schemes
Decision of: The Hon F Marks, Principal Member; L Wilson Senior, MemberCatchwords: Appeal – new grounds of original application raised for first time at appeal hearing - held appropriate in the circumstances to determine all of the matters in dispute in the course of the appeal hearing-appeal allowed. Community Association – amendments to By-Laws of Management Statement purportedly made at Annual General Meeting- failure to secure approval of Council as required by Management Statement-amendments beyond power of Community Association-held amendments invalid-consequential orders made |
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Wen v Mazda Australia Pty Limited [2019] NSWCATAP 169
Consumer and Commercial Division - Motor Vehicles
Decision of: P Durack SC, Senior Member; D Goldstein, Senior MemberCatchwords: CONSUMER CLAIM – Section 54 of the Australian Consumer Law – challenge to acceptance of expert opinion – no competing expert opinion – onus of proof not satisfied – no appellable error shown |
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Champion Homes Pty Ltd v Lal [2019] NSWCATAP 170
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; D Charles, Acting Principal MemberCatchwords: BUILDING AND CONSTRUCTON – s48O Home Building Act 1989 – work order – appropriateness of an order to render residential premises otherwise to be constructed with a face brick finish where rectification method to face brick finish does not address all defects. |
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The Owners - Strata Plan 89023 v AT Building Pty Ltd [2019] NSWCATAP 171
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; R Hamilton SC, Senior MemberCatchwords: APPEAL – home building – work orders for rectification of defects – costs decision – whether rejection of Calderbank offer unreasonable – whether error of law – whether leave should be granted |
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McDonnell v The Owners Strata Plan No 64191 [2019] NSWCATAP 172
Consumer and Commercial Division - Strata schemes
Decision of: P Durack SC, Senior Member; D Goldstein, Senior MemberCatchwords: STRATA SCHEMES MANAGEMENT – building new residential area in common property – whether authorised in accordance with s65A of the Strata Management Act 1996 – whether discretionary refusal of relief argument available on appeal – point not run at first instance |
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Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173
Consumer and Commercial Division - Social Housing
Decision of: D Charles, Senior Member; A Boxall, Senior memberCatchwords: APPEAL - Residential Tenancy – termination – whether any error of law – leave to appeal refused – no question of principle |
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Bentata v NSW Land and Housing Corporation [2019] NSWCATAP 174
Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Principal MemberCatchwords: PRACTICE AND PROCEDURE – application for summary dismissal – abuse of process – set aside application pending in proceedings at first instance – appeal against substantive orders lodged subsequently – power of Appeal Panel to intervene in unresolved set aside application. |
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Sorrento Bathrooms and Kitchens Pty Ltd v Wei Huang Wang [2019] NSWCATAP 175
Consumer and Commercial Division - Commercial
Decision of: Armstrong J, President; S Thode, Senior MemberCatchwords: COSTS - costs when proceedings are withdrawn or settled |
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Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Goldstein, Senior MemberCatchwords: APPEAL – Dividing fences – failure to exercise jurisdiction |
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Pope v Telstra Corporation Limited [2019] NSWCATAP 178
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; K Ransome, Senior Member Catchwords: CIVIL PROCEDURE – hearings – procedural fairness – notice of hearing |
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Cook v Mintus Properties Pty Ltd [2019] NSWCATAP 179
Consumer and Commercial Division - Tenancy
Decision of: A Bell, SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL – residential tenancy – whether tribunal decided claim under wrong section – no error as tribunal took most favourable approach to claimant - whether significant new evidence has arisen – whether decision against the weight of the evidence – failure to take uncontradicted evidence into account |
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King v Dabcevic [2019] NSWCATAP 181
Consumer and Commercial Division - Tenancy
Decision of: R L Hamilton SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL - no question of law - leave to appeal on a ground other than a question of law – whether Tribunal’s decision fair and equitable – whether Tribunal’s decision against the weight of evidence – whether significant new evidence had arisen since the hearing below |
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K & K Ventures Pty Ltd v Attar [2019] NSWCATAP 182
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; P H Molony, Senior MemberCatchwords: APPEAL – Costs – rule 38 – rule 38A - no requirement to establish special circumstances – capitulation by respondent on appeal – acceptance of absence of jurisdiction under Home Building Act 1989 - general discretion to award costs – costs awarded on appeal – costs awarded at first instance from date jurisdiction put in issue. |
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ZLE v ZLF [2019] NSWCATAP 183
Guardianship Division
Decision of:Armstrong J, President; M D Schyvens, Deputy President; B McPhee, SeniorCatchwords: APPEAL – guardianship – leave to appeal – whether the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken – whether error was made in relation to Appellant’s suitability to be appointed guardian – no error made – leave refused – appeal dismissed. |
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Charlie Bridge Street Pty Ltd v Petrazzuolo [2019] NSWCATAP 184
Consumer and Commercial Division - Commercial
Decision of: S Cole DCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEAL – retail lease – right of re-entry on non-payment of rent – extent of obligation to give notice |
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News v Cotes [2019] NSWCATAP 186
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; K Rosser, Principal Member Catchwords: COSTS – Rule 38 of the Civil and Administrative Tribunal Rules, 2014 – exercise of discretion – usual order – successful party’s entitlement to costs – no error in exercising discretion |
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Morgan-Jones & Ufert v The Owners Strata Plan No 15599 [2019] NSWCATAP 187
Consumer and Commercial Division - Strata schemes
Decision of: G K Burton SC, Senior Member; P H Molony, Senior Member Catchwords: Strata management - compulsory strata manager - standing of lot owners to challenge by-law under SSMA s150 |
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Wassef v Panagiotopoulos [2019] NSWCATAP 188
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; J Lucy, Senior MemberCatchwords: COSTS – effect of r38A – special circumstances |
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DKV v Southern NSW Local Health District [2019] NSWCATAP 189
Administrative and Equal Opportunity Division
Decision of: S Cole DCJ, Deputy President; J Kearney, Senior MemberCatchwords: Administrative Law – NCAT internal appeal – Health Privacy Principles – scope of review by NCAT |
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Nationwide Builders Pty Ltd v Saunders [2019] NSWCATAP 190
Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member (acting); J Kearney, Senior MemberCatchwords: Home Building – against the weight of evidence – fair and equitable – excessive damages |
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Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2019] NSWCATAP 191
Consumer and Commercial Division - Home Building
Decision of: N Hennessy ADCJ, Deputy President; K Ransome, Senior MemberCatchwords: APPEAL – costs of appeal – where Tribunal ordered that each party pay their own costs following withdrawal of application by builder - where sub-contractor appealed from first instance costs decision – where sub-contractor successful on appeal – where Appeal Panel re-exercised costs discretion but made no order as to costs – whether special circumstances exist justifying a costs order in favour of either party in the appeal proceedings |
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Chun v Tyre Empire Pty Ltd [2019] NSWCATAP 192
Consumer and Commercial Division - Motor Vehicles
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: DAMAGES – claim for costs incurred in pursuing alternative rectification method to that finally adopted – liability of wrongdoer for such costs – failure to mitigate. |
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Coomber v Butler [2019] NSWCATAP 194
Concumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal MemberCatchwords: PRACTICE AND PROCEDURE – s53(4) Civil and Administrative Tribunal Act, 2013 – setting aside for irregularity – failure to afford natural justice – no evidence of relevant failure. |
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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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