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| NCAT Appeal Decisions Digest May 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 May 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: - ZJJ v JZK [2019] NSWCATAP 126, which considered the Tribunal’s requirement to consider the matters in ss14 and 17 of the Guardianship Act 1987 when making a guardianship order.
- Bavin v Parklea Operations Pty Ltd [2019] NSWCATAP 120 that examined an application under s85 of the Residential (Land Lease) Communities Act 2013 for recovery of money paid towards electricity under a mistake of fact or law. The Tribunal set out the approach the Tribunal should take to such applications, including how to calculate the amount due.
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| ZJJ v ZJK [2019] NSWCATAP 126
Guardianship Division
A Britton, Principal Member; A Boxall, Senior Member; P Foreman, General Member
The mother, an eighty-eight year old woman had been residing in an aged care facility in Sydney until she was admitted to hospital in May 2018 following a fall. In May 2018, the Guardianship Division of the Tribunal made an order appointing one of the mother’s sons as her guardian. The other son, the appellant, appeals against the order and a decision of the Tribunal in July 2018 refusing to set it aside ([1]).
The appellant’s appeal, in effect, raises the following questions of law ([29]):
- “In making a guardianship order, did the Tribunal fail to take into account the matters listed in s14(2) of the Guardianship Act, as required by that Act, specifically the Appellant’s views and those of the Mother and the importance of preserving family relationships?
- Was the history of the Mother’s placements in aged care facilities in the six years prior to her current hospital admission, an “irrelevant consideration” the Tribunal was bound to ignore?
- Did the Tribunal misapply s14(2)(d) by misinterpreting the word “services”?
- Did the Tribunal fail to afford the Appellant procedural fairness by:
(a) refusing to grant an adjournment, and
(b) proceeding to conduct the hearing on 24 May 2018 in his absence? - Was there material before the Tribunal capable of supporting the finding that the Appellant was unable to exercise the role of guardian?
- Did the Tribunal make a decision that was “legally unreasonable” by:
(a) making a guardianship order,
(b) giving the guardian the power to make decisions about the Mother’s diet and access to the Mother, and
- Did the Tribunal fail to give adequate reasons for its decision to make a guardianship order?”
Held (dismissing the appeal):
(i) Before exercising the discretion of whether to make a guardianship order under s14 of the Guardianship Act, the Tribunal was required to give “proper, genuine and realistic consideration” to the matters listed in s14(2). The first ground of appeal fails because “the Tribunal did not simply advert to the impugned considerations but, as required, gave each proper, genuine and realistic consideration” ([46]).
(ii) An “irrelevant consideration” is one that a decision maker is barred from taking into account when exercising a discretion ([50]). Neither s14(2) nor any other provision of the Guardianship Act expressly prohibits the Tribunal from considering matters not listed in s14(2). A consideration of the “subject matter, scope and purpose” of the Act indicates that it does not impliedly prohibit consideration of matters the Tribunal considers relevant to the subject person’s welfare and interests. Therefore, the Tribunal was permitted to have regard to the history of the mother’s accommodation in aged care facilities and this ground of appeal was rejected ([50]-[57]).
(iii) The word “services” in s14(2)(d) of the Guardianship Act should not be given a narrow construction and so this ground of appeal fails ([61]).
(iv) The Tribunal is obliged to afford each party procedural fairness under s38(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), to take “reasonably practicable” measures to ensure parties have a reasonable opportunity to be heard under s38(5)(c) and to consider the “guiding principle” and the objects in ss36(1) and 3(d) respectively. The appellant was provided six weeks’ notice of the hearing and three options for participation. His explanation for being unable to avail himself of any of these methods was unpersuasive ([74]). The NCAT’s Guardianship Division Guideline entitled “adjournments” notes that the Tribunal may, but will not always, grant an adjournment when one is requested more than five working days before the hearing. The Tribunal is required to give the appellant a reasonable opportunity and not every opportunity to participate in the hearing. The Tribunal went to extensive lengths to provide the appellant with an opportunity to participate ([75]-[76]). The failure to determine the application for an adjournment prior to the hearing does not constitute a failure to comply with s38(5)(c) of the CAT Act ([77]). This ground of appeal fails.
(v) The Tribunal must be satisfied that a person who is to be appointed as a guardian meets the criteria in s17(1) of the Guardianship Act. The Tribunal at first instance was not satisfied that the appellant met those criteria. It can be implied that the Tribunal found the “disturbing” frequency with which the mother was moved between nursing homes (nine moves over six years) was largely due to the appellant’s inability “to form and sustain working relationships with aged care and health professionals”. There was sufficient material before the Tribunal on which it could find that the appellant was unable to exercise the role of guardian. This ground of appeal fails. ([80]-[85]).
(vi) The appellant’s assertion that the decisions to give the guardian the power to make decisions about the mother’s diet and access to the mother, and not to appoint the appellant as the guardian was legally unreasonable was not established. This ground fails. “That he [the appellant] holds the honest belief that the impugned decisions lack an evident and intelligible justification is insufficient to establish that contention” ([86], [90]-[91]).
(vii) The Tribunal’s reasons contain: its findings of fact on material questions and the basis on which those findings were made; the Tribunal’s understanding of the applicable law; and the chain of reasoning by which the Tribunal reached its decision. Thus, the Tribunal’s reasons were adequate. This ground of appeal fails ([96]-[97]).
As there was no error of law, it was unnecessary to decide whether to grant leave to appeal ([98]). The appellant’s other claims including that the brother and the director of a nursing home colluded to give false evidence, and that the brother made false statements at the hearing are unsubstantiated ([106], [109]). The appellant’s claims that the Tribunal went about the fact finding role in such an unorthodox manner or in such a way that it was likely to produce an unfair result or that the Tribunal made findings based on “false evidence” are not established ([121]).
Leave to appeal the interlocutory decisions of the Tribunal is refused ([129]). Appeal dismissed.
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| Consumer and Commercial Division - Residential Communities
S. Higgins, Senior Member; D. Goldstein, Senior Member
The appellants are home owner occupiers in a residential community that the respondent operates. The appellants agreed to pay the operator all charges in relation to the supply and resupply by the operator of electricity to their homes. The homes are connected to an electricity meter which records the kWhs of electricity supplied. The meter does not display the times the electricity is supplied so the user cannot determine at the correlative rate at which the electricity is being supplied to the operator by the retail supplier ([1], [9]). The appellants applied to the Tribunal under s85 of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) to recover amounts paid to the respondent for electricity under a mistake of fact or law for the period November 2015 to March 2018 on the ground that they had paid more than the respondent was entitled to recover under s77(3) of the RLLC Act ([1]-[2]).
In the initial decision, the Tribunal dismissed the appellants’ claims on the basis that their site agreements were governed by the old Act and not the RLLC Act, and the former did not contain provisions equivalent to ss77 and 85 of the RLLC Act ([13]).
The appellants appealed to the Appeal Panel, which allowed the appeal and remitted the application to the Tribunal ‘to determine the amount of electricity charges, if any, to be refunded to the appellants’ ([14]).
When remitted, the Tribunal dismissed the application because the appellant did not provide a ‘precise formulation of a methodology’ for calculating the amount above the permitted sum ([3]). The Tribunal also held that the application in relation to claims for overpayment prior to 9 January 2018 was brought out of time and that the respondent had not charged the appellants for electricity use in accordance with s77(3) ([3]). The Tribunal ordered the respondent to comply with s77(3) of the RLLC Act and dismissed the remainder of the compensation claim ([16]). The appellants appeal the decision dismissing the remainder of their claim ([17]).
The grounds of appeal are: 1) the Tribunal erred in deciding that the application was brought out of time; 2) the Appeal Panel ought to extend time for bringing their application pursuant to section 41 of the CAT Act; and 3) the Tribunal was obliged to determine the amount payable once it found that the respondent overcharged for electricity ([20]).
Held (allowing the appeal in part):
i) The time for bringing the application is governed by r23(3) of the CAT Rules. Section 39 of the CAT Act defines the word “application”. The relevant enabling legislation is the RLLC Act and the Residential (Land Lease) Communities Regulation 2015 (NSW) (RLLC Reg) ([32]-[34]). The Tribunal erred in how it applied r23(3)(b) of the CAT Rules to the appellants’ application ([46]). Rule 23(3)(b) requires an application to be made within 28 days from the day on which the applicant ‘became entitled under the enabling legislation’ to make the application.
“Accordingly, in this case and on the proper construction of rule 23(3)(b) of the CAT Rules and s156 of the RLLC Act, time began to run from the time the appellants were in dispute with the respondent in regard to the alleged overcharging and not from the time the respondent issued an electricity bill the appellants allege to exceed what the respondent was entitled to charge under s77(3) of the RLLC Act” ([48]).
The application related to alleged overcharging between January 2016 and July 2017. The Appeal Panel were of the view that the appellants’ dispute with the respondent about overcharging for electricity arose during the course of the proceedings ([52]). The Tribunal’s reasoning below about an extension of time should stand. The Appeal Panel granted an extension of time for the appellants to bring their application under s85 of the RLLC Act for abundant caution ([54]). However, no extension is required for the claim relating to overcharging between August 2017 and March 2018 as it is an allegation of an ongoing breach ([57]).
ii) Jurisdiction under s85 of the RLLC Act – Under s85(1) of the RLLC Act, a home owner has a right to recover an amount that he or she has paid as a charge for the supply of a utility to the operator under a mistake of law or fact ([73]). At common law this a claim for restitution and arises where the defendant has obtained an unjust benefit from the plaintiff ([74]). Section 85(1) is wider than the common law. “While we make no conclusive finding, we doubt the concept of an inference of unjust enrichment and the above defences to such an inference applies under s85” ([76]). The Tribunal cannot make an order under s157(1)(d) of the RLLC Act if not satisfied of the matters in s85(1) which give rise to the home owner’s entitlement to the sum. In any event, the Tribunal retains its discretion as to whether to make the order sought ([80]).
It is accepted that s77(3) of the RLLC Act sets the maximum amount an operator can charge for electricity it supplies to a home residence as no more than what the operator was charged by the utility service provider for that supply: Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park v Reckless [2018] NSWSC 1343 ([83]). The Tribunal found that the respondent charged the appellants more for their electricity usage than the retail electricity supplier had charged it ([84]). This was by mistake of law or fact ([85]).
The Appeal Panel distinguished between a claim brought under s77(3) and a claim brought under s85 of the RLLC Act ([83]). Where a claim is brought under s85 of the RLLC Act, the Tribunal’s role is to resolve the dispute between the parties about the alleged overpayment. In cases such as this, the Tribunal must estimate as best as it can on the available evidence, the amount the home owner paid the operator for the utility use above the amount the operator is allowed to charge.
The Tribunal erred in finding that s85 of the RLLC Act “required the home owner to provide a ‘precise formulation of a methodology’, or a ‘precise calculation’ of the amount he or she claimed was paid to the operator by mistake of fact or law”. That was an error of law ([91]-[92]). The Tribunal made an error of law in its approach to assessing the amount of overpayment. The established line of authority that a court and a tribunal must do the best it can to assess damages also applies to proceedings brought under s156 of the RLLC Act for the payment of money or compensation under s157. The Tribunal was required to assess the amount each appellant paid in excess of what the respondent was entitled to charge “by doing the best it could, or by ‘guess work’ or ‘estimate’ on the material before it” ([95]-[104]). The Tribunal’s role under s85 of the RLLC Act is to resolve the dispute and make appropriate order(s) under s157 of the RLLC Act. Its role is not to calculate exactly how much the operator could charge the home owner for the use of electricity ([111]).
In light of the Tribunal’s findings, the appeal was allowed in part and the Tribunal’s decision to dismiss the remainder of the appellants’ compensation claim was set aside. The s85 RLLC Act claim was remitted to the Tribunal ([115]).
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Singh v Fobupu Pty Ltd [2019] NSWCATAP 111
Consumer and Commercial Division - Commercial
Decision of: K Rosser, Principal Member; K Ransome, Senior MemberCatchwords: APPEAL – Leave to appeal – out of time - utility of appeal - costs |
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K&J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 112
Consumer and Commercial Division - Home Building
Decision of: R. L. Hamilton SC; R Perrignon Catchwords: APPEALS - Home building contract – outstanding progress claims – repudiation of contract – termination of contract – calculation of damages for breach - adequacy of reasons - error of law |
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Service Today (NSW) Pty Ltd & Magerovski v Commissioner for Fair Trading [2019] NSWCATAP 113
Administrative and Equal Opportunity Division
Decision of: S Westgarth, Deputy President; M Harrowell, Principal MemberCatchwords: ADMINISTRATIVE LAW – review of decision to cancel licences under the Home Building Act, 1989 – denial of procedural fairness – review of answers given to show cause notice – use of subsequent evidence to demonstrate answers false or misleading – penalty – reference to cases – parity principle. |
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Collier v Glenville Australia PL [2019] NSWCATAP 114
Consumer and Commercial Division - Tenancy
Decision of: G K Burton SC, FCIArb, Senior Member; Emeritus Prof G de Q Walker, Senior Member Catchwords: Residential tenancy – alleged breaches |
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The Owners Strata Plan No. 2000 v Bylinska [2019] NSWCATAP 116
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; J Currie, Senior MemberCatchwords: Strata – consent orders – jurisdictional error – denial of procedural fairness – right to inspect documents protected by legal professional privilege – extending time under section 41 of the Civil and Administrative Tribunal Act 2013 |
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Menaker v Adambuilt Pty Ltd [2019] NSWCATAP 117
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – consent orders – whether basis on which to set aside - joinder of additional party – whether denial of procedural fairness – whether significant new evidence not reasonably available |
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Jiang v Cousins [2019] NSWCATAP 118
Consumer and Commercial Division - General
Decision of: D Cowdroy OAM QC ADCJ, Principal Member; L Wilson, Senior Member Catchwords: Appeal – Dividing Fences – Sufficient fence - Encroachment |
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Rayner v Rayner [2019] NSWCATAP 121
Consumer and Commercial Division - Tenancy
Decision of: S Higgins, Senior Member; G Sarginson, Senior MemberCatchwords: LEASES AND TENANCIES – residential tenancy – whether orders for possession should have been stayed pending determination of the tenant’s asserted claim of an equitable interest in the premises that gave him a right to possession independently of the residential tenancy agreement. |
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JCK Building Solutions Pty Ltd v Marr [2019] NSWCATAP 122
Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member; P Durack SC, Senior MemberCatchwords: APPEAL – false oral evidence allegedly given at hearing – fresh evidence claim – new evidence was reasonably available at the time of hearing -concession that builder would carry out certain rectification work - leave to appeal refused |
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Destination NSW v Taylor [2019] NSWCATAP 123
Administrative and Equal Opportunity Division - GIPA
Decision of: N Hennessy ADCJ, Deputy President; S Frost, Senior MemberCatchwords: APPEAL – access to government information – whether the Tribunal erred when applying the public interest test by taking into account irrelevant considerations – whether leave should be given for the appellant to appeal on grounds other than a question of law – whether the Tribunal denied the appellant procedural fairness |
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McGinn v BMW Sydney [2019] NSWCATAP 124
Consumer and Commercial Division - Motor Vehicles
Decision of: Professor Ian Bailey AM SC, Senior Member; John Currie, Senior Member Catchwords: Civil and Administrative Tribunal Act (NSW) – consumer law – motor vehicles – Australian Consumer Law |
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Long v Antoun’s Concrete Pumping Pty Ltd [2019] NSWCATAP 125
Consumer and Commercial Division - General
Decision of: The Hon F Marks Principal Member; S Thode Principal Member Catchwords: Costs - unsuccessful appeal proceedings from decision of Consumer and Commercial Division-held section 60 of Civil and Administrative Tribunal Act displaced by Rules 38 and 38 A-appellant ordered to pay costs of respondent |
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Lin v Munro [2019] NSWCATAP 127
Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; A Suthers, Principal MemberCatchwords: Appellant’s obligation to provide evidence in support of grounds under clause 12 of schedule 4 of the Civil and Administrative Tribunal Act 2013 |
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Jordan v Tsang [2019] NSWCATAP 128
Consumer and Commercial Division - Tenancy
Decision of: T. Simon, Principal Member; S. Higgins, Senior MemberCatchwords: iRESIDENTIAL TENANCY – procedural fairness – bias - fair and equitable – against the weight of evidence |
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O’Neill v Country Motor Company Pty Ltd [2019] NSWCATAP 129
Consumer and Commercial Division - Motor Vehicles
Decision of: A Bell SC, Senior Member; S Thode, Senior Member Catchwords: CONSUMER LAW – consumer guarantees – major defect – rejection of goods - rejection period pursuant to 262(2) of the Australian Consumer Law |
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Cubic Metre Pty Ltd v C & E Critharis Constructions Pty Ltd [2019] NSWCATAP 130
Consumer and Commercial Division - Home Building
Decision of: N Hennessy ADCJ, Deputy President; K Ransome, Senior MemberCatchwords: APPEAL – costs - exercise of discretion to award costs under r38(2) of the Civil and Administrative Tribunal Rules 2014 where proceedings are withdrawn – applicable principles |
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SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council [2019] NSWCATAP 131
Consumer and Commercial Division - Commercial
Decision of: D Cowdroy OAM QC ADCJ, Principal Member; D A C Robertson, Senior MemberCatchwords: LEASES AND TENANCIES – retail and commercial tenancies legislation - licence by second respondent to first respondent of land for temporary purposes – first respondent entering into sub-licence with appellant – head licence terminated – notice given to terminate sub-licence – appellant claiming to have rights to remain in occupation - appellant alleging that the sub-licence did not contain all the relevant provisions – no evidence to support contention – whether mediation was required – whether dispute resolution process was required before orders for termination of sub-licence could be made – appellant claiming that the sub-licence constituted a retail shop lease under the Retail Leases Act – sub-licence capable of comprising a retail shop lease as defined – permitted use under sub-licence did not constitute a use contained in Schedule 1 of the Retail Leases Act – termination of sub-licence valid. |
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Hollins v NSW Land and Housing Corporation [2019] NSWCATAP 132
Consumer and Commercial Division - Social Housing
Decision of: S. Higgins, Senior Member; G. Sarginson, Senior MemberCatchwords: APPEAL – Residential tenancies – Social housing – Breach by reason of threats, abuse or harassment – Whether tenancy should be terminated – Exercise of discretion – Adequacy of reasons |
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Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D Fairlie, Senior Member Catchwords: APPEAL – home building – claim by builder for payment under contract – cross claim by owners for defects and delay –withdrawal of owners’ claim - whether denial of procedural fairness in not adjourning – whether failure to have regard to evidence |
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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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