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| NCAT Appeal Decisions Digest June 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 June 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: - Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144 which concerned the Tribunal’s power to terminate a residential tenancy for breach of a residential tenancy agreement under ss87 and 154E of the Residential Tenancies Act 2010 and found that termination was justified. The Appeal Panel also turned its mind to the meaning of “exceptional circumstances” which would justify suspending an order for possession within the meaning of s154G but found no such circumstances were present.
- Carlson v ARA Engine Reconditioning Pty Ltd [2019] NSWCATAP 149 that considered that the Tribunal may breach procedural fairness by failing to offer an adjournment in circumstances where neither party sought one. In these circumstances no “practical injustice” was caused to the appellant and so no adjournment was required.
- Cynthia Jian Er Huang t/as Auchland and Co v Younes [2019] NSWCATAP 153 that considered the Tribunal was permitted to proceed to determine an application lodged in the wrong form. This was because the Tribunal’s mandate is to determine issues justly, quickly and cheaply and there is no requirement to have regard to technicalities or legal form under ss36(1) and 38(4) of the NCAT Act.
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| Carr v NSW Land and Housing Corporation [2019] NSWCATAP 144
Consumer and Commercial Division - Social Housing
The Hon F Marks, Principal Member; L Pearson, Principal Member
Clause 7.1 of the residential tenancy agreement between Lesleigh Carr (the appellant) and NSW Land and Housing Corporation (the respondent) provided that the tenant agrees “not to use the residential premises, or cause or permit the premises to be used, for any illegal purpose” ([9]). The respondent issued a Notice of Termination for vacant possession on 23 September 2018 to the appellant in respect of an alleged breach of cl7.1 on the basis that NSW Police had executed a search warrant at the premises and found various items including prohibited drugs, related items and a significant amount of cash. It was not the position that all of the items belonged to the appellant ([10]).
The Tribunal at first instance held the appellant had breached the agreement because she had used or caused the premises to be used for an illegal purpose. The Tribunal terminated the tenancy and gave possession to the respondent ([1]). The Member identified ss87, 91 and 154E of the Residential Tenancies Act 2010 (RT Act) as being the relevant provisions ([22]-[24]). The Member concluded at [31] of her decision that:
“The Tribunal finds on the evidence before it, the tenant has breached s91(1)(a) of the RT Act by intentionally or recklessly causing or permitting the use of the premises for the supply of prohibited drugs. Furthermore the seizure of the three scales along with the drugs being packaged into various plastic bags leads the Tribunal to comfortably find that the tenant was allowing the premises to be used to package prohibited drugs for the supply to others.”
Further, the Member held that there was no material before her to persuade her not to exercise the discretion not to terminate the tenancy ([29]).
The grounds of appeal (in the amended notice of appeal) were: that the Tribunal made findings of fact not based on rationally probative evidence; erred in findings made under s91 of the RT Act; and asked itself the wrong question in considering s154E of the RT Act. The appellant also sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of evidence ([2]).
Held (allowing the appeal):
(i) The Tribunal correctly identified ss87 and 154E of the RT Act as the relevant provisions but it is not clear why the member referred to s91 as that was not raised by the parties ([22]). The issue before the Tribunal was whether the tenant had breached the residential tenancy agreement by using, causing or permitting the premises to be used for an illegal purpose – here storage or supply of illegal drugs - (s87 RT Act) and not whether the tenant “has intentionally or recklessly caused or permitted: (a) the use of the residential premises … for the purposes of the manufacture, sale, cultivation or supply of any prohibited drug within the meaning of the Drug Misuses and Trafficking Act 1985…” (s91 RT Act) ([24]-[26], [31]). Section 54 of the RT Act which relates to the vicarious liability of tenant or co-tenant is enlivened where the case is brought on the basis of a breach of the residential tenancy agreement under s87 RT Act ([32]). The Tribunal erred in considering the provisions of s91 of the RT Act notwithstanding that the application of the provisions provides for substantial overlap of the application of the factual circumstances of the case ([35]). To the extent that the Member erred by considering s91 the appeal is allowed and the decision set aside.
(ii) After rehearing the matter the Appeal Panel held that the tenant had breached cl7.1 of the residential tenancy agreement. The effect of s51(1)(a) and (5) of the RT Act is to import the following term into every residential lease “(1) A tenant must not do any of the following: (a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose…” ([42]). The Appeal Panel rejected the appellant’s submission that she had no or limited knowledge that illegal drugs were present at the rented premises and that they belonged to the cousin’s son, save for a family member’s marijuana ([43]). The effect of s54 of the RT Act is that the appellant is vicariously liable to the respondent for the cousin’s son’s conduct in storing illegal drugs in commercial quantities on the premises. This is relevant for the purpose of determining whether the tenancy provisions were breached ([44]). The Appeal Panel was “comfortably satisfied that the appellant has permitted the premises to be used for an illegal purpose” and the respondent was entitled to issue a notice of termination ([45]).
(iii) The Tribunal must be satisfied under s87(4)(b) of the RT Act that “the breach is, in the circumstances of the case, sufficient to justify termination of the agreement” taking into account the factors listed in s87(5) ([46]). The factors in s154E of the RT Act must be considered as this is a social housing tenancy ([50]). The Appeal Panel considered: - that there was no evidence of neighbours or other persons being unduly affected by the conduct;
- this was not an isolated event;
- that “bringing undesirable persons into the neighbourhood is likely to have a serious adverse effect on neighbouring residents”;
- the respondent as a social housing provider is obliged to keep the relevant premises as safe as possible and residents away from any illegal activity;
- the absence of evidence of any previous issues in this tenancy;
- the absence of evidence that the tenant is in breach of any Tribunal order; and
- that the appellant lives with three children in the rented premises.
“However, the seriousness of the activities in May 2018 and the grievous circumstances which apply to these proceedings militate against the exercise of any discretion to decline to make an order to terminate the tenancy” ([51]).
(iv) It is appropriate to make an order terminating the tenancy and it is necessary to make an order for possession to the respondent under s83(1) of the RT Act ([52]). Section 154G of the RT Act permits an order for possession to be suspended where there are “exceptional circumstances”. There is little case law on the meaning of “exceptional circumstances” in relation to s154G.
“The decisions to which the parties referred, including Parslow v NSW Land and Housing Corporation [2018] NSWSC 1909 and Ritson v Leighton [2015] NSWCA 62 provide some guidance in different contexts. In the latter decision Ward JA referred to authority which establishes that “exceptional circumstances” are those which while not unique or unprecedented or very rare, are those which are out of the ordinary or unusual.”
The Appeal Panel was not satisfied that the appellant’s medical condition amounted to “exceptional circumstances” such that the date for possession should be extended. Possession to take place after the usual 28 days ([56]).
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| Carlson v ARA Engine Reconditioning Pty Ltd [2019] NSWCATAP 149
Consumer and Commercial Division - Motor Vehicles
K Rosser, Principal Member; Dr J Lucy, Senior Member
The appellant alleges that the respondent failed to properly repair an engine ([1]). The appellant applied to the Tribunal for compensation to cover the cost of a new engine and other expenses ([2], [12]). The application was made under the Motor Dealers and Repairers Act 2013. The Tribunal has power to make orders under the Australian Consumer Law (ACL) as applied by the Fair Trading Act 1987 (NSW). The Tribunal held that there was no breach of s60 of the ACL to render services with due care and skill. The Tribunal at first instance dismissed the application and ordered that the respondent make the engine and its components available for collection by the appellant ([2], [19]-[20]).
The appellant relied on a number of grounds of appeal ([21]-[22]), which it was agreed could be characterised as follows:
- He was unable to obtain expert evidence, because the respondent did not give him access to the engine as required by the Tribunal’s orders (ground one);
- The Tribunal interrupted him and allowed the respondent to interrupt him at the hearing (ground two);
- The Tribunal was misled by the expert evidence of the respondent (ground three); and
- The Tribunal made its decision in two hours (ground four).
Held (dismissing the appeal):
(i) The first ground of appeal raises a question of law as to whether the Tribunal denied the appellant procedural fairness by failing to offer him an adjournment when he had not had a reasonable opportunity to obtain expert evidence ([31]). There was enough material before the Tribunal member to alert him/her to the issue that the respondent had retained the engine contrary to the Tribunal’s orders and that the appellant claimed this caused him disadvantage ([37]).
“The right of a party to be given an opportunity to be heard “includes prior notice of the issues to be addressed, an opportunity to call evidence, an opportunity to make submissions and the right to have his or her evidence and submissions given appropriate consideration by the decision-maker”. Further, “a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness” ([38] citations omitted).
The Tribunal may breach procedural fairness by failing to offer an adjournment even in circumstances where the applicant does not apply for one. NCAT is required by ss38(2) and 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to provide each party with a reasonable opportunity to present his/her case ([39]). In order to afford procedural fairness, the Tribunal may be required to offer an adjournment in circumstances where a self-represented party has not asked for one ([42]). The Tribunal was not required here to offer the appellant an adjournment. It was open to the Tribunal to consider that the appellant chose to provide expert evidence by way of documents criticising the respondent’s experts instead of an expert report ([45]).
The Tribunal’s failure to offer an adjournment, or the chance to apply for one, did not cause any “practical injustice” to the appellant. This was because the Tribunal rejected the contention that the respondent was contractually obliged to inspect certain car parts. Thus, the expert evidence was not determinative of the issues in dispute ([47]). The first ground of appeal is dismissed ([48]).
(ii) The second ground identifies a question of law as to whether the Tribunal failed to afford the appellant procedural fairness by not giving him a proper opportunity to be heard ([50]). The transcript indicates that the Tribunal member interrupted the appellant at times but, these did not amount to a denial of a reasonable opportunity to be heard ([51]). The second ground of appeal is dismissed ([52]).
(iii) The third ground of appeal does not raise a question of law so leave is required. The appellant submits that he may have suffered a miscarriage of justice as the Tribunal’s decision was not fair and equitable and because it was against the weight of evidence ([54]).
“The contention that the decision was against the weight of evidence because it did not take account of expert evidence which Mr Carlson had not obtained misconstrues cl12(1)(b) of Sch 4 to the NCAT Act. A decision is only “against the weight of evidence” if it is against the weight of the evidence which is before the Tribunal. Clause 12(1)(b) does not look to evidence an applicant has not been able to obtain ([58]).”
The Tribunal considered all of the evidence before it and preferred that of the respondent. No error in the Tribunal’s fact finding process has been demonstrated ([61]). Leave to appeal on this ground is refused ([62]).
(iv) The fourth ground does not raise a question of law or any other error. The decision is substantial and no claim has been made that the reasons are inadequate. Leave to appeal on this ground is refused ([67]).
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| Cynthia Jian Er Huang t/as Auchland and Co v Younes [2019] NSWCATAP 153
Consumer and Commercial Division - General
A Suthers, Principal Member; L Wilson, Senior Member
Cynthia Jiab Er Huang (the appellant), a licensed conveyancer, provided conveyancing services to Bassem Bou Youne (the respondent) in respect of the purchase of land. At first instance the Tribunal ordered that the appellant pay $1,374.48 to the respondent being an overpayment resulting from a failure to appropriately adjust the rates between the respondent and the vendor on settlement ([1]-[2]). The Tribunal found that the appellant as a licensed conveyance:
“[I]f acting with due care and skill would have ensured, upon settlement:
a. that the Vendor, from the sale proceeds, would have paid all outstanding amounts paid to the Council (sic); and
b. retained in trust an amount to pay the vendor’s share of any Council Rates that would be separately assessed for the land for the period from 18 October 2017 (the plan registration date) to the date of settlement being 31 January 2018, this would have been dealt with at settlement by the Vendor’s solicitors and the Respondent, exchanging undertakings as to how the amount retained would be applied” ([5]).
The appellant’s first ground of appeal is that she was denied procedural fairness as a result of the Tribunal proceeding to determine the matter as a “consumer claim” under the Fair Trading Act 1987 and applying the Australian Consumer Law (NSW) (ACL) instead of as a “conveyancing costs application” (as the respondent’s application was lodged) under the Conveyancer’s Licensing Act 2003 (NSW) ([9]-[11]).
The appellant’s second ground of appeal is that the Tribunal made its finding at [9(b)] in the absence of evidence because the Tribunal did not obtain or refer to an independent expert such as a Licensed Conveyancer or Solicitor about the matter ([12]).
Held (allowing the appeal and re-determining the application):
(i) The Consumer and Commercial Division often receives applications from self-represented applicants commenced with the wrong form. The Tribunal also commonly treats an application in one form as that of another. To do so is “quite proper, given the Tribunal’s mandate to facilitate the just, quick and cheap resolution of the issues in the proceedings and to act with as little formality as the circumstances of the case permit according to equity, good conscience, and the substantial merits of the case” and that the Tribunal does not need to have regard to technicalities or legal forms: ss36(1) and 38(4) of the NCAT Act ([14]). The Tribunal treated the application for a conveyancing costs dispute as an application for a consumer claim ([15]). Procedural fairness may not have been afforded to the appellant if the Tribunal failed to act transparently and fairly in its decision to treat the application as a consumer claim. The appellant has not satisfied the Appeal Panel that this occurred. This ground fails ([17], [19]).
(ii) The evidence before the Tribunal included the contract for the sale of the land, the settlement adjustment sheet, a receipt from the council of the amount paid on settlement and the rates issued for the land after completion. It is not clear on what basis the Tribunal below made the finding at [9(b)]. Therefore, the finding was made without any relevant evidence and there was no logical connection between the conclusions reached and the material in evidence. An error occurred. The appeal should be allowed ([21]-[24]).
(iii) The parties did not suggest that the Tribunal would benefit from any fresh or additional evidence. The Appeal Panel re-determined the matter ([26]). The matter was treated as an application for a consumer claim. This would not surprise the appellant given the procedural history of this matter ([27]). On the evidence before the Appeal Panel the Appeal Panel found that the respondent overpaid the appellant $519.73 on settlement. The overpayment was the result of the appellant failing to act with due care and skill as required under s60 of the ACL ([28], [44], [45]). The money held by the Registrar (as a result of the proceedings below and a stay) is to be distributed as $519.73 to the respondent and the balance to the appellant ([47]).
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Makowska v NSW Land and Housing Corporation [2019] NSWCATAP 105
Consumer and Commercial Division - Social Housing
Decision of: The Hon F Marks Principal Member; L Wilson Senior MemberCatchwords: Appeals - adequacy of reasons - application summarily dismissed without allowing submissions and without giving reasons - error of law |
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Chen v Owners Strata Plan No. 55792 [2019] NSWCATAP 135
Consumer and Commercial Division - Strata
Decision of: G K Burton SC, Senior Member; P H Molony, Senior MemberCatchwords: Strata management - by-laws and covenants - interpretation - maintenance and repairs |
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El Amami v Perkins [2019] NSWCATAP 136
Consumer and Commercial Division - Tenancy
Decision of: D Cowdroy OAM QC ADCJ, Principal Member; D A C Robertson, Senior MemberCatchwords: LEASES AND TENANCIES - residential tenancies – order made in absence of tenant terminating tenancy and ordering occupation fee pending delivery up of possession – order based upon failure of appellant to pay rent – tenant filing application to set aside orders claiming not notified of hearing – application refused – appeal from refusal decision – arrears of rent unpaid – tenant argued no obligation to pay rent by reason of the illegality of the tenancy – tenancy not shown to be illegal – illegality would not absolve tenant from obligation to pay rent - warrant for possession executed – Appeal Panel having no power to grant leave – appeal dismissed. |
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Ghaderi v Western Sydney University [2019] NSWCATAP 137
Consumer and Commercial Division - General
Decision of: D G Charles, Senior Member; J T Kearney, Senior Member
Catchwords: APPEAL – practice and procedure – whether time for filing appeal should be extended – exercise of discretion – no question of principle
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Philpott t/as TallyHo Floats v Macdonald [2019] NSWCATAP 138
Consumer and Commercial Division - General
Decision of: G K Burton SC, Senior Member; P Molony, Senior Member
Catchwords: Consumer claim – identity of supplier – representation and procedural fairness – adequacy of reasons – reconsideration on appeal
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K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139
Consumer and Commercial Division - Home Building
Decision of: F Corsaro SC, Senior Member; D A C Robertson, Senior MemberCatchwords: Appeal – delay – dismissal of claim for want of prosecution –discretion under s55 of the Civil and Administrative Tribunal Act 2013 (NSW) – lack of evidence as to required delay – appeal allowed. |
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Antonio v Trotter Automotive Pty Ltd [2019] NSWCATAP 140
Consumer and Commercial Division - Motor Vehicles
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior MemberCatchwords: APPEAL – inadequate reasons DAMAGES – general principles – measure of damages – difficulty of assessing damages – absence of evidence to allow a rational assessment of damages |
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Mansion Building Pty Ltd v Warren [2019] NSWCATAP 141
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior MemberCatchwords: APPEAL – leave to appeal – substantial miscarriage of justice – decision under appeal not fair or equitable |
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Tudor v Smart Buy Auto’s Pty Ltd [2019] NSWCATAP 142
Consumer and Division - Motor Vehicles
Decision of: S Higgins, Senior Member; P H Molony, Senior MemberCatchwords: APPEAL – sale of motor vehicle by motor vehicle dealer – failure of the Tribunal to consider the appellant’s claim of a breach of the statutory consumer guarantee in ss54 and 55 of the Australian Consumer Law – appeal allowed |
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ZLT v NSW Trustee & Guardian [2019] NSWCATAP 143
Guardianship Division
Decision of: Armstrong J, President; M D Schyvens, Deputy President; B McPhee, Senior MemberCatchwords: APPEAL – Guardianship Division – application to revoke financial management order - procedural fairness – whether the subject person was denied procedural fairness because they did not have legal representation in the hearing – leave to appeal on error of fact – whether the tribunal made a factual error that was unreasonably arrived at and clearly mistaken – leave refused. |
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NS Admin Pty Ltd v Singh (No. 2) [2019] NSWCATAP 145
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Robertson, Senior MemberCatchwords: COSTS – costs on appeal - respondents substantially successful – amount in dispute exceeds threshold – costs follow event except for agreed discount |
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Qiang v Cohen [2019] NSWCATAP 146
Consumer and Commercial Division - Tenancy
Decision of: D Charles, Senior Member; J Kearney, Senior MemberCatchwords: APPEAL – extension of time granted – landlord’s obligation to carry out repairs - whether rent reduction order should be varied or set aside – no error of law – no leave to appeal – no question of principle |
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Solar SG Pty Ltd t/as Solar Service Group v Hufton [2019] NSWCATAP 147
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – 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 – Whether leave should be given to admit evidence available below |
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Cheng v Bugno [2019] NSWCATAP 148
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; D Charles, Senior MemberCatchwords: APPEAL– new trial – procedural fairness – notice of hearing – service in accordance with NCAT Rules – when departure from rules of natural justice will entitle aggrieved party to a new trial — whether compliance with rules of natural justice would have made any difference to the result |
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Rodny & Communications Power Incorporated (Aust) Pty Ltd v Stricke & Ors [2019] NSWCATAP 150
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy PresidentCatchwords: Adjournment |
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The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 151
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; J Currie, Senior MemberCatchwords: Costs |
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Matterson v Sunrise Pools Australia Pty Ltd (No. 2) [2019] NSWCATAP 152
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Charles, Senior MemberCatchwords: COSTS – costs of appeal – each party enjoyed success on the appeal – where appellant successful on a new ground permitted at hearing of appeal – indemnity costs sought – measurement of success on appeal – costs of hearing at first instance when second trial of one issue led to a different result than at first trial – fresh evidence at second trial. |
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Alliance Project Group Pty Ltd v The Owners – Strata Plan No. 92334 [2019] NSWCATAP 154
Consumer and Commercial Division - Home Building
Decision of: NSWCATAP 154 (CCD, HB) M Harrowell, Principal Member; D Charles, Acting Principal MemberCatchwords: PRACTICE AND PROCEDURE – Leave to appeal – dismissal of application for summary dismissal – abuse of process – failure to enquire about the value of works for which a work order is sought under the Home Building Act prior to the commencement of proceedings. |
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Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATAP 155
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; D Charles, Senior MemberCatchwords: LANDLORD AND TENANT – residential tenancies legislation – obligations, prohibited matters and protection for lessees – reduction in services – excessive rent and compensation – assessment – no point of principle |
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Indorato v Ottaviano t/as Transbuild Construction [2019] NSWCATAP 156
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; J Kearney, Senior Member Catchwords: Costs |
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Nationwide Builders Pty Ltd v Castelino [2019] NSWCATAP 157
Consumer and Commercial Division - Home Building
Decision of: D Charles, Acting Principal Member; R Perrignon, Senior MemberCatchwords: APPEAL – no error of law – leave to appeal refused – no question of principle |
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Slotwinski v Nutek Constructions Pty Ltd; Nutek Constructions Pty Ltd v Slotwinski [2019] NSWCATAP 158
Consumer and Commercial Division - Home Building
Decision of: F Corsaro SC, Principal Member; AR Boxall, Senior MemberCatchwords: Appeal – Determination of quantum meruit claim – Failure to consider expert evidence relevant to the assessment of a builder’s quantum meruit claim – quantification of quantum meruit entitlement – Leave to appeal granted – Appeal allowed – remittal for further consideration of quantum meruit claim. |
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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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