| | | | | NCAT Appeal Decisions Digest March 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 March 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: - Grenade v Nikolvski [2019] NSWCATAP 57, which addressed the effect of ss6A and 16 of the Retail Leases Act 1994 on the terms of retail leases.
- Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63, which considered the scope of s139 of the Strata Schemes Management Act 2015 and whether or not a by-law was invalid under that provision.
- ZKF v ZKG [2019] NSWCATAP 64, which discusses the requirements of a person who wishes to be appointed a guardian under s17(1)(c) of the Guardianship Act 1987.
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| Grenade v Nikolvski [2019] NSWCATAP 57
Consumer and Commercial Division - Commercial
S Higgins, Senior Member; D Robertson, Senior Member
The appellant is a former tenant of retail premises owned by the respondent landlord. The parties entered into a written pro-forma ‘Commercial Lease’ for the shop for a term of one year, with provision that the lease would transform to a periodic lease from month to month on the expiry of the one year term unless either party gave written notice otherwise ([8]-[9]). It was a term of the lease that when it became a periodic lease, either party could terminate it by giving one month’s written notice ([10]).
The Tribunal at first instance dismissed the appellant’s two applications (one for an interim order preventing the respondent from locking him out of the shop on the basis that the termination notice was unlawful, and one for compensation for costs incurred at the beginning of the lease). In respect of the respondent’s application, the Tribunal made orders that the Secretary of the Department of Industry, Skills and Regional Development pay a Retail Bond sum of $600 to the respondent and that the appellant pay the sum of $3,919.85 to the respondent ([1], [14]-[15]). The respondent sought an order for the payment of outstanding rent, an occupation fee for storage of the appellant’s goods and reimbursement of the costs of repairs for damage caused by the appellant ([17]).
The grounds of appeal were that: under the Retail Leases Act 1994 (NSW) (RL Act) (as it applied at the relevant time) the lease was a 5 year lease and so had been unlawfully terminated; there had been a substantial miscarriage of justice; the Tribunal’s error of law meant that the appellant was wrongly and unjustly penalised; the appellant was not afforded a fair hearing; the Tribunal unlawfully considered all the appellant’s claims “under one umbrella”; and the Tribunal failed to consider and give weight to the appellant’s evidence ([18]-[19]).
Held (dismissing the appeal): (i) The shop the subject of the lease in dispute was a retail shop governed by the RL Act ([29]). Section 6A of the RL Act relates to short term leases. The Tribunal erred in misapplying s6A(4) of the RL Act to the written retail shop lease between the parties ([5], [54], [101]). The Appeal Panel held:
“In our view, on its proper construction, s6A(4) gave a lessee of a short term lease (i.e. a lease for a term of less than 6 months) the opportunity to elect to have the benefit of a five year lease under s16 where that lessee goes on, uninterrupted, to remain in possession or is entitled to be in possession for more than one year. As the term of the lease agreement between the appellant and the respondent was not a short term lease, s6A(4) had no application to that lease” ([59], [61]).
The Tribunal erred in failing to apply s16 of the RL Act (as in force at the time the parties executed their lease agreement). Section 16 provided that a retail shop lease term, other than a short term lease agreement, is five years unless exempted from the provision, proof of which is found in a certificate from a lawyer or a licenced conveyancer under s16(3) ([5], [60]-[61], [102]).
The appellant did not argue the ss6A and 16 RL Act points at first instance. Ordinarily, parties are not permitted to raise an issue on appeal that was not raised at trial. Here it was appropriate to permit the appellant to do so because there was no suggestion that the respondent might have adduced additional evidence had the issue been raised at first instance ([63]-[64] citing the Court of Appeal in Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 at [76]-[77]).
Correctly understood, the term of the lease was for 5 years to run until 20 March 2019. The respondent lawfully terminated it on 5 February 2018 under the terms of the lease agreement in circumstances where the appellant was in arrears for 12 weeks of rent. Therefore, despite the above errors of law the appeal was dismissed ([5], [66]-[71], [103]). This error in the Tribunal’s reasons does not affect the Tribunal’s ultimate orders that the lease was validly terminated entitling the respondent to make a claim for outstanding rent, the cost of replacing locks and the cost of repairs ([5], [74], [104]).
(ii) The appellant did not suffer any prejudice or injustice as a result of the Tribunal having asked the respondent whether s/he was going to file a cross-application [78].
(iii) Both parties filed evidence and were given an opportunity to address the Tribunal. The Tribunal considered a statutory declaration of the appellant’s wife. However, nothing in the Civil and Administrative Tribunal Act (CAT Act), including s38, requires the Tribunal to question the maker of a statutory declaration.
(iv) There was no error in the Tribunal dealing with the different claims all together ([92]). Neither was there any basis for the appellant’s claim of unconscionable conduct against the respondent under s62B RL Act ([95]).
(v) The fact that the appellant was dissatisfied with the outcome of the Tribunal does not mean that the findings were against the weight of evidence, or that that Tribunal had erred in its decision ([99]).
No other error was established nor has the appellant suffered a substantial miscarriage of justice in the way the Tribunal dealt with his claims for compensation or outstanding rent ([6], [105]). |
| Sik v The Owners – Strata Plan No 58961 [2019] NSWCATAP 63
Consumer and Commercial Division - Strata
P Durack SC, Senior Member; D A C Robertson, Senior Member
The appellants own a commercial use lot in Strata Plan No 58961, which had been untenanted for several years (the Lot). A potential tenant expressed interest in using the premises for a swimming school. The local Council rejected the development application (DA). The respondent, the owners of the Strata Plan, moved to pass a by-law to prevent the Lot being used as a swimming school. On review, the Council confirmed its refusal of the DA because the owners’ corporation’s consent was required and had not been provided. The respondent, by special resolution, passed Special By-Law 10 (the By-Law) prohibiting several uses of lots, including for “any swimming pool or leisure/recreational facilities” (sub-paragraph B(f)) ([3]-[4]).
At first instance, the appellants sought an order to rescind or invalidate the By-Law in respect of the “prohibited uses” on the basis that: it adversely affects the appellants’ clients’ business opportunities; is unjust to the commercial interest of the appellants as owners of the Lot; is unconscionable; and oppresses the Lot owners’ rights under s139 of the Strata Schemes Management Act 2015 (SSM Act) ([6]-[7]). Section 139(1) provides that “[a] by-Law must not be harsh, unconscionable or oppressive”. Section 139(2) provides that no by-law can prevent dealings in relation to a lot.
The Tribunal exercised its power under s150 of the SSM Act to order that the prohibited use of a lot as a swimming pool in sub-paragraph B(f) was invalid by reason of s139 of the SSM Act (although it is unclear from the reasons whether it was due to s139(1) and/or (2)). The clause went beyond simply requiring compliance with the relevant land use zoning for commercial use. It purported to prohibit a use that might be permitted by the local Council in accordance with the Environmental Planning and Assessment Act 1979 ([8]-[9]). The Tribunal did not determine whether the other “prohibited uses” in paragraph B of the By-law were invalid as they were not in dispute ([12]). In written submissions, the appellants sought compensation. The Tribunal refused this claim because it was not demonstrated that the By-Law was the cause of the Council’s refusal to approve the DA ([14]).
On appeal, the appellants argued that the remainder of categories of “prohibited use” in the By-Law were also invalid because they defeat the right of a property owner to the enjoyment of her/his land contrary to s139 of the SSM Act by preventing an owner dealing with her/his lot. The appellants also challenged the dismissal of their compensation claim ([16]-[17]).
Held (allowing the appeal in part): (i) The Tribunal erred to the extent that it relied on s139(2) of the SSM Act to declare that sub-paragraph B(f) was invalid. This was because “[w]hatever may be the scope of “dealing” in this provision it cannot extend to restricting the use of the lot. Otherwise, it would be directly contradictory of the terms of s136(1), which permits by-laws to be made “in relation to the…use…of the lots…of a strata scheme” ([30]). The Appeal Panel noted that, while unnecessary to determine the issue because of s139(1), “[w]e incline to the view that “dealing” in s139(2) is intended to refer to the transfer of an interest in the lot, that is, to something falling within the same genus or class as “devolution…transfer, lease [and] mortgage”…” ([31]).
(ii) The appellants’ argument that the By-law in its entirety was unconscionable and oppressive contrary to s139(1) of the SSM Act was not addressed by the Tribunal, which confined itself to considering sub-paragraph B(f). The Appeal Panel, citing CG Constructions Pty Ltd v Hanson Constructions Materials Pty Ltd [2017] NSWCATAP 130 at [34] noted:
“In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ (Hayne J agreeing) said at [24] that a failure to respond “to a substantial, clearly articulated argument relying upon established facts was at least” a failure to accord an applicant natural justice. A failure of that kind has also been described as a constructive failure to exercise jurisdiction. Such a failure will constitute an error of law” ([39]).
The appeal was allowed and remitted to the CCD to determine whether subparagraphs (a) and (c)-(e) of the definition of “prohibited use” in Clause B of the By-Law are invalid contrary to s139(1) of the SSM Act ([42]).
(iii) In order to make a successful claim for damages a party must establish the elements of a cause of action known to the law ([46]). The appellants did not advance an argument of negligence at first instance. The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 is “strongly persuasive, if not binding, authority that no action for breach of statutory duty lies in respect of the actions of an owners corporation under the SSMA” (despite recent legislative amendments to the SSM Act) ([51]). The Appeal Panel was not persuaded that even if fresh evidence had been available, it could be said that the appellants suffered a substantial miscarriage of justice. Therefore, leave to appeal against the Tribunal’s dismissal of the appellants’ claim for compensation was refused ([63]-[64]).
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| ZKF v ZKG [2019] NSWCATAP 64
Guardianship Division
A Britton, Principal Member; J Moir, Senior Member; M Bolt, General Member
The mother, the subject person in these proceedings, lived in England for most of her adult life before relocating to Australia to live with her adult daughter in 2013. Since 2016, the mother has lived in a residential aged care facility in Sydney, first on a respite and then on a permanent basis.
In August 2018, the Tribunal renewed an order appointing the Public Guardian as the mother’s guardian for the purpose of making decisions about her accommodation ([1]-[3]). The mother’s adult son, the appellant, and the daughter dispute whether the mother should remain living in residential care in Australia or should move to England to live with the appellant and his wife ([4]).
Section 17(1)(c) of the Guardianship Act 1987 (NSW) provides that “A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that… (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.” The appellant argued as a question of law that the Tribunal misapplied s17(1) of the Guardianship Act by adding a requirement to the criteria for appointing a person as a guardian, namely that the appellant be able to undertake “a full independent consideration” of his proposal to relocate his mother to England to live with him and his wife ([19]). The appellant also sought leave to appeal on a question of fact, being the Tribunal’s finding that he was not able to make a “best interests” decision about his mother’s accommodation.
Held (allowing the appeal): (i) The Tribunal misapplied s17(1)(c) of the Guardianship Act in relation to whether the proposed guardian was “able” to exercise the accommodation function ([5] and [37]).
“The word “able” in par (c) in our view cannot be construed to mean the ability to provide a full independent assessment of what is in the subject person's best interests, particularly given the separate requirement, contained in (b) that there be no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship” [35].
The Tribunal erred in requiring an independent assessment. The central question addressed under s17(1) is whether the appellant was able to make the decision consistent with the duty under the Act to give paramount consideration to the interests of the mother. It is irrelevant that someone else may take a different view ([36]). The matter was remitted to the Tribunal as to whether the appellant satisfies the criteria in that provision.
(ii) The decision to re-appoint the Public Guardian is to be set aside from the date the Tribunal reconsiders the above question.
(iii) The subject person is to be separately represented in the remitted proceedings pursuant to s35(4)(c) of the CAT Act.
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| | | The Owners – Strata Plan 20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP 20211 [2019] NSWCATAP 49
Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; R Perrignon, Senior Member Catchwords: COSTS - whether special circumstances warranting an order for costs – whether refusal of offer of settlement constitutes special circumstances |
| Guo v Tejani [2019] NSWCATAP 50
Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; J McAteer, Senior MemberCatchwords: COSTS – appeal withdrawn- whether special circumstances for an award of costs |
| Aboriginal Housing Office v Blacklock [2019] NSWCATAP 51
Consumer and Commercial Division - Social Housing
Decision of: S Higgins, Senior Member; D A C Robertson, Senior MemberCatchwords: LEASES AND TENANCIES – residential tenancies – social housing – dismissal of application for termination of tenancy – whether Tribunal’s reasons for dismissing application were adequate |
| Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52
Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; D Charles, Senior MemberCatchwords: Appeal – error of law – breach of guarantee of acceptable quality – Australian Consumer Law (NSW) |
| Petropoulos v CPD Holdings Pty Ltd [2019] NSWCATAP 53
Consumer and Commercial Division - Home Building
Decision of: Hennessy ADCJ, Deputy President; G Sarginson, Senior Member Catchwords: COSTS – appeal from first instance costs decision –where Appeal Panel partially set aside the first instance principal decision after the first instance costs decision had been made – where parties agreed that the issue of costs should be remitted to the Tribunal and re-determined in light of the Appeal Panel’s decision – whether Appeal Panel should address grounds of appeal or whether there was no utility in doing so |
| Petropoulos v CPD Holdings Pty Ltd [2019] NSWCATAP 54
Consumer and Commercial Division - Home Building
Decision of: Hennessy ADCJ, Deputy President; G Sarginson, Senior Member Catchwords: COSTS – costs on appeal – where homeowner successful on one ground of appeal – whether Tribunal should order that builder pay 100% of the homeowner’s costs – whether homeowner has failed on a separable issue – whether there are factors that militate against awarding 100% of homeowner’s costs |
| Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport (No 2) [2019] NSWCATAP 55
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; J Kearney, Senior MemberCatchwords: COSTS – s60 Civil and Administrative Tribunal Act, 2013 – special circumstances – new evidence first produced on appeal – no conduct of parties responsible for failure to provide evidence at original hearing – parties raising irrelevant and unnecessary issues |
| Long v Antoun’s Concrete Pumping Pty Ltd [2019] NSWCATAP 56
Consumer and Commercial Division - General
Decision of: The Hon F Marks, Principal Member; S Thode, Principal MemberCatchwords: Appeal and leave to appeal from Consumer and Commercial Division-principles on appeal-held no appellable error demonstrated-leave to appeal refused and appeal dismissed – costs reserved |
| Allen v Wallace [2019] NSWCATAP 58
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D A C Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building – cost plus contract – repudiation – misleading and deceptive conduct – adequacy of reasons |
| Hutchings v Hope [2019] NSWCATAP 59
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; M Harrowell, Principal Member Catchwords: CONTRACT LAW – Contract to do residential building work – Sham – Unenforceability of contract under Home Building Act 1989 – “just and equitable” to recover on a quantum meruit basis |
| ZKB v ZKC [2019] NSWCATAP 60
Guardianship Division
Decision of: N Hennessy ADCJ, Deputy President; J Kearney, Senior Member; F Given, General Member Catchwords: APPEAL – whether Tribunal failed to make relevant findings of fact – whether Tribunal breached the rules of procedural fairness |
| Anderson v The Owners - Strata Plan No. 61034 [2019] NSWCATAP 61
Consumer and Commercial Division - Strata
Decision of: Dr R Dubler SC, Senior Member; J McAteer, Senior MemberCatchwords: STRATA SCHEME – legal test for an owners corporation not functioning satisfactorily pursuant to s237(3)(a) of the Strata Schemes Management Act – legal test for an owners corporation failing to perform one or more of its duties pursuant to s237(3)(c) of the Strata Schemes Management Act
APPEAL – whether findings that the Scheme was functioning satisfactorily, that agreements were not harsh or unconscionable or for an improper purpose were manifestly unreasonable and against the weight of evidence – whether the Tribunal failed to consider facts, submissions and matters put forward so as to deny the appellants procedural fairness
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| Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust (No. 2) [2019] NSWCATAP 62
Consumer and Commercial Division - General
Decision of: I Bailey AM SC, Senior Member; G Sarginson, Senior Member Catchwords: Appeal – costs – special circumstances – proportionality – lump sum order |
| Dehsabzi v The Owners – Strata Plan No. 83556 [2019] NSWCATAP 65
Consumer and Commercial Division - Strata
Decision of: T Simon, Principal Member; D Goldstein, Senior MemberCatchwords: COSTS - appeal withdrawn - whether special circumstances exist for an award of costs |
| Sneesby v Market Direct Group Pty Ltd t/as Market Direct Campers [2019] NSWCATAP 66
Consumer and Commercial Division - Motor Vehicle
Decision of: F Corsaro SC, Senior Member; G Sarginson, Senior Member Catchwords: CONSUMER CLAIM – Procedural fairness – Adjournment – Late service by party of voluminous documents – Whether adjournment should have been offered to other party – Whether error of law established. CONSUMER CLAIM – Failure to consider parts of claim – Whether error of law established. CONSUMER CLAIM – Adequacy of reasons – Whether error of law established. |
| Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; L Wilson Senior Member Catchwords: Home Building – Date of Completion of residential building work – major defect – proof of elements – limitation periods |
| Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: COSTS – retail lease proceedings – orders as sought by tenant made by consent at first directions hearing except as to costs – merits of landlord’s attempt to terminate occupancy - special circumstances – indemnity costs |
| NS Admin Pty Ltd v Singh [2019] NSWCATAP 69
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – retail and commercial tenancies legislation - retail shop lease – water ingress – breach of covenant of quiet enjoyment – proof of loss – hearsay evidence in expert’s report - leasing next door premises to a competitor – alleged unconscionable conduct by lessor–– no error of law – no appellable error of fact |
| Tate v Apex Autoworks and Tyres Pty Ltd [2019] NSWCATAP 70
Consumer and Commercial Division - Motor Vehicles
Decision of: The Honourable F Marks, Principal Member; D Goldstein, Senior Member Catchwords: Motor vehicle consumer claim – allegation of failure to exercise due care and skill in carrying out repair and in failing to do so within a reasonable time – held necessary to bring evidence from an expert with respect to these matters – in absence of expert evidence claims failed – appeal dismissed |
| The Owners – Strata Plan No. 80412 v Vickery [2019] NSWCATAP 71
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; K Rosser, Principal MemberCatchwords: APPEALS – Leave to appeal an interlocutory decision – application for summary dismissal – principles applicable – issue raised on appeal not raised in proceedings at first instance – relevance of prospect if appeal to superior court in exercise of discretion to grant leave. |
| ZKS v ZKT [2019] NSWCATAP 72
Guardianship Division
Decision of: A Britton, Principal Member Catchwords: COSTS — whether special circumstances warranting an award of costs are established . WORDS AND PHRASES — meaning of phrase “special circumstances” in s60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) |
| Hanna v BOS Holdings Pty Ltd (No 2) [2019] NSWCATAP 73
Consumer and Commercial Division - Commercial
Decision of: P Durack, SC, Senior Member; D Charles, Senior Member Catchwords: APPEAL – COSTS – application for indemnity costs and order for lump sum payment refused |
| | 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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