NCAT Appeal Panel Decisions Digest Issue 11 of 2022 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in November 2022:
Rahman v Zraiter [2022] NSWCATAP 354: The Appeal Panel dismissed an appeal based on the merits of the case, rather than ordering the disposition of the appeal under s 55(1)(c) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) due to the non-appearance of the appellant. By dealing with the case on its merits, it did not leave the appeal open to be reinstated by the appellant in future. Mohd v Basha [2022] NSWCATAP 351: The Tribunal’s reasons insufficiently identified whether it had duly considered the discretionary nature of the power of the Tribunal to make a termination order under s 89(5) Residential Tenancies Act 1989 (NSW) (RTA), thereby applying the wrong legal test in making its decision and falling into error. FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367: The Tribunal did not err in its construction of s 40 Surveillance Devices Act 2007 (NSW) (SDA), which created an offence for the release of protected information. This was a significant factor weighing against the disclosure of the information sought by the appellant, who also failed to establish any “special interest” which would override the secrecy provision in cl 6 of the s 14 Table to the Government Information (Public Access) Act 2009 (GIPA Act).
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Should an appeal, where the appellant continually sought unmeritorious adjournments and failed to appear at hearings, be dealt with by way of disposition or on the merits of the appeal? |
Rahman v Zraiter [2022] NSWCATAP 354 Consumer and Commercial Division – Tenancy P Durack SC, Senior Member; G Burton SC, Senior Member
In sum: An appeal, where the appellant sought repeated adjournments without adequate explanation was dealt with on the merits, rather than by way of disposition of the appeal based on his absence from the proceedings under s 55(1)(c) NCAT Act. Where the appeal was wholly unmeritorious, it accorded with s 36 NCAT Act to prevent the appellant from reinstating an appeal in future.
Facts: The appellant (tenant) rented a residential premises from the respondent (landlord) for a fixed term of six months, expiring in July 2022. In April 2022, the landlord commenced proceedings in the Tribunal based on the non-payment of rent by the tenant. Although the fixed tenancy period had expired by the time of the hearing, pursuant to s 18 Residential Tenancies Act 1989 (NSW) (RTA), the tenancy continued as a periodic tenancy. The Tribunal ordered the termination of the lease under ss 87 and 88(1) RTA (for the breach of an agreement and termination for non-payment), rather than terminating a fixed or periodic tenancy which required notice under ss 84 and 85 RTA. The Tribunal ordered the amount of $7340 to be paid to the landlord immediately. The order for repossession was suspended for seven days. The tenant appealed this decision and sought a stay of the Tribunal’s orders.
Held (refusing the appeal): (i) The Appeal Panel refused to grant a stay of the Tribunal’s orders in an earlier directions hearing, as the appellant failed to appear without explanation. Whilst the possession order was suspended until the earlier of the finalisation of the appeal or 14 September 2022, the tenant was still ordered to pay the arrears. As the tenant remained in possession of the premises, he was also ordered to pay a daily occupation fee from the date of the Tribunal’s orders until the landlord regained possession of the premises (at [7],[8], [9]).
(ii) In his appeal, the tenant sought to set aside the decision of the Tribunal pursuant to reg 9 of the Civil and Administrative Tribunal Regulation 2013, on the basis that he was absent from the proceedings. This was dismissed. The tenant’s medical certificates were insufficient to excuse his frequent absences (generically describing him as “unfit for either employment or study”). The arrears were significant, and the tenant had made no payments. Therefore, refusing to set aside the Tribunal’s decision did not present an “unjust outcome” (at [9], [10]).
(iii) The Appeal Panel decided against disposing of the appeal under s 55(1)(c) NCAT Act, because it would remain open to the appellant to reinstate the appeal in future. Instead, it determined the appeal on its merits in accordance with the guiding principle in s 36 NCAT Act. The appellant had the opportunity to present his case through submissions (even though he forewent that opportunity), and his constant applications for adjournments were seen as attempts to prolong the proceedings. There was no evidence to support his assertions that there was an agreement between the parties that he was not required to pay rent and the medical certificates he provided were inadequate to justify the constant delays. The Appeal Panel refused to grant leave and the appeal was dismissed (at [23], [24], 30], [34], [35]). |
2. If the Tribunal is satisfied that a tenant has frequently failed to pay rent, is the Tribunal’s power to make a termination order mandatory or discretionary? |
Mohd v Basha [2022] NSWCATAP 351 Consumer and Commercial Division – Tenancy G Curtin SC, Senior Member; J Currie, Senior Member
In sum: The decision to make a termination order under s 89(5) RTA is a discretionary one. The Tribunal at first instance erred, failing to give reasons for its decision for making an order under s 89(5) RTA and not looking into any relevant factors which could justify the tenant’s behaviour when making the termination order.
Facts: The tenants appealed a termination order made under s 89(5) RTA by the Tribunal. The parties entered into a lease agreement for a period of 26 weeks. It was alleged that the tenants had a habit of falling behind on their rental payments, which caused significant stress for the respondent (landlord) who then struggled to make her mortgage repayments. The tenancy rental ledger showed a continual state of arrears. However, up until the date of the first instance hearing, the tenants were mostly up-to date with their rent. The landlord issued a termination notice on the basis of non-payment of rent and water usage charges, requesting vacant possession within 2 weeks. A week later, the landlord commenced proceedings in the Tribunal, which found the tenants frequently failed to pay their rent, satisfying s 89(5) RTA. The order for repossession was suspended but the tenants were ordered to pay a daily occupation fee until repossession.
Held (allowing the appeal): (i) The Tribunal erred in its construction of s 89(5) RTA, where the critical word in the provision is “may”, conferring a discretion, rather than a mandate. In context of other similar provisions in the RTA, it would be usual to give the word “may” in s 89(5) the same meaning as it has in other provisions of the Act. There was no clear reason for a different interpretation either from the text, the context, the language of the RTA viewed as a whole. Therefore, for reasons of consistency and fairness, the word “may” in s 89(5) RTA denotes a discretionary exercise of power (at [23], [27], [28], [34]).
(ii) Section 89(5) provides a discretion for the Tribunal to make a termination order based on the non-payment of rent or owing water usage amounts, upon the application of the landlord. The Appeal Panel found there were two parts to the application of s 89(5) RTA: first, whether the Tribunal was satisfied that the tenants had frequently failed to pay rent. Second, whether the Tribunal, in the exercise of its discretion, considered that a termination order should be made. It was common ground between the parties that the first limb was satisfied. As for the second limb, the Tribunal failed to provide reasons in its decision and erred in law (at [35], [36], [37]).
(iii) The reasons provided by the Tribunal were insufficient to demonstrate that it had duly considered the exercise of discretion required by s 89 RTA. It could not be ascertained by the Appeal Panel whether the Tribunal did not know that the power to make a termination order was discretionary (and therefore did not consider that issue) or did know the discretion existed but overlooked it. Either of these would result in the Tribunal constructively failing to exercise its jurisdiction. If the Tribunal did consider the discretion, it failed to give any reasons why it was exercised against the tenants and in favour of the landlord. Consequently, on either reading of the Tribunal’s decision, it erred in law by failing to apply the correct legal test (at [38], [39], [40]). |
3. Was police body camera footage considered “protected information” for the purpose of the Surveillance Devices Act 2007 (NSW) (SDA)? If yes, were there any exceptions to releasing that information under a GIPA Application? |
FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367 Administrative and Equal Opportunity Division – Administrative Review The Hon D.A. Cowdroy AO KC, Principal Member; Dr R Dubler SC, Senior Member
In sum: The Appeal Panel upheld the decision of the Tribunal which refused to release video footage obtained on police body camera as it was considered “protected information” under s 39, SDA. As releasing that footage was an offence under s 40(1) SDA, the Tribunal had not erred in its decision, and its construction of s 40 reflected the objects of the act, to restrict communication of information obtained under the SDA and created penalties for improper release of that information.
Facts: The appellant (FDY) made an application under the GIPA Act seeking access to records, including footage from a police officer’s body worn video camera (“the video footage”), relating to a visit by police officers to his residence in November 2019. The respondent (Commissioner) refused to provide access to all the requested information under s 58(1)(d) of the GIPA Act. Following an internal review, the Commissioner provided access to some of the information sought by the appellant except where there was an overriding public interest against disclosure of the video footage. FDY sought review of the decision in the Tribunal, which found that the release of the video footage was prohibited by s 39 SDA. As the footage was “protected information”, s 40(1) SDA created an offence if that information were disclosed. Accordingly access to such camera footage was refused. FDY appealed that decision, citing an error of law by the Tribunal in its construction of s 40 SDA.
Held (dismissing the appeal): (i) FDY’s submissions invited the Appeal Panel to depart from the exact words in the text of s 40 SDA and apply a “flexible interpretation”. This was rejected, where the video footage fell expressly within the definition of “protected information” in s 39(d) SDA, which includes information obtained from body worn footage of police. Section 40(1) creates an offence where a person “intentionally, knowingly or recklessly, uses, communicates or publishes any protected information”. As the text of s 40 SDA was “plain and unambiguous”, there was no need to invoke other principles of statutory interpretation or read down the statute to allow for exceptions to release the information. The Tribunal had not erred in its construction (at [48], [49], [59] [60]).
(ii) It was observed that the video footage which FDY sought access to, did not involve him. This distinguished FDY’s applications from the cases of Morgan and Wojciechowska, where in each of those matters, the applicants had a “special interest” in accessing the footage which was relevant to assessing the public interest favouring disclosure. In the present case, no such considerations arose, and no special interest could be established which could outweigh the secrecy provisions contained in cl 6 of the s 14 Table to the GIPA Act. The Tribunal was correct in assessing the penalties applicable for disclosure of the video footage as provided by s 40 of the SDA in determining the public interest considerations. Such penalties reflect the objects and policy underlying the SDA, limiting the use and communication of information obtained under the Act (at [60], [61], [69]). |
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Tamayo v Abdulrahim [2022] NSWCATAP 339 Consumer and Commercial Division – Tenancy Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent – reduction or withdrawal of goods, services or facilities by the landlord – failure to maintain may be a reduction or withdrawal by the landlord – evidence – Tribunal in error in finding no evidence the landlord was aware of water leaks prior to 8 March 2022 |
White v McClellan [2022] NSWCATAP 340 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; D Fairlie, Senior Member Catchwords: APPEALS – Home Building Act 1989 – decision against the weight of evidence – assessment of compensation |
Royal Flair Caravans Pty Ltd v Kylie Ryan Productions Pty Ltd (No 2) [2022] NSWCATAP 341 Consumer and Commercial Division – Motor Vehicles Decision of: A Suthers, Principal Member; P Durack SC, Senior Member Catchwords: COSTS – special circumstances not required – application of general rule that costs follow the event – appellant successful on appeal but not on significant new issue raised on appeal concerning jurisdiction of the Tribunal – discount of appeal costs awarded to appellant in the circumstances |
Aboss v Hafeez [2022] NSWCATAP 345 Consumer and Commercial Division – Tenancy Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – premises not subject to occupation certificate and not legally able to be occupied at commencement of tenancy |
Nasarallah v Cha-Yun Fan [2022] NSWCATAP 346 Consumer and Commercial Division – Tenancy Decision of: G. Sarginson, Senior Member; G. Ellis SC, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) –Payment of rent – Co-tenants – Whether co-tenancy terminated – Liability for rent arrears – premises nevertheless fit for habitation within meaning of s 52 of Act |
Baserite Constructions Pty Ltd v Tanios [2022] NSWCATAP 347 Consumer and Commercial Division – Home Building Decision of: A Suthers, Principal Member; G Sarginson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Agreement to rectify – Whether new contract – Breach of contract- – Jurisdiction of Tribunal – s 48K (7) Home Building Act 1989 – Breach of contract – Assessment of damages –BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Settlement of proceedings – Consent work orders – Jurisdiction of Tribunal – Limitation period s 48K (7) Home Building Act 1989 – Major defects – Whether consent orders within jurisdiction – Renewal of proceedings Sch. 4 Cl. 8 Civil and Administrative Tribunal Act 2013 |
Benson v The Owners, Strata Plan No 17676 [2022] NSWCATAP 348 Consumer and Commercial Division – Strata Schemes Decision of: D Charles, Senior Member; J S Currie, Senior Member Catchwords: APPEALS – Error of law – failure to engage with Appellant’s case – adequacy of reasons for decision – LAND LAW – Strata title- Owners’ corporation – Powers – functions of owners corporation – changes to common property – rooftop fencing – validity of resolution – entitlement of owners’ corporation and its agents – invitees to access to affected lot |
ZVR v NSW Trustee and Guardian [2022] NSWCATAP 349 Mental Health Review Tribunal Decision of: Armstrong J, President; A Suthers, Principal Member Catchwords: APPEALS – designated external appeal – appeal from decision of Mental Health Review Tribunal – failure of Mental Health Review Tribunal to confirm relevant persons notified of application to it – procedural unfairness established due to a combination of factors – possibility of a different outcome |
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Mohd v Basha [2022] NSWCATAP 351 Consumer and Commercial Division – Tenancy Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW), s 89(5) – termination – by landlord – frequent failure to pay rent – “may” make a termination order – s 89(5) involves a discretionary decision – reasons to be given for the exercise of that discretion |
Cheung v Talal [2022] NSWCATAP 352 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – application to admit further evidence refused – leave to appeal refused – service by post of notice of hearing on party sufficient – no obligation on Tribunal to serve notice of hearing by email – no denial of procedural fairness by proceeding with hearing when absent party served by post – no error on a question of law – LAND LAW – Strata titles – noise and vibration affecting lots below – acoustic standard established by By-laws discussed – lot owner’s evidence of subjective experience of noise and vibration corroborated by expert reports – orders made for rectification |
ZZD v ZZE; ZZX v ZZY [2022] NSWCATAP 353 Guardianship Division Decision of: A Boxall, Senior Member; R Booby, Senior Member; M Bolt, General Member Catchwords: GUARDIANSHIP – guardianship order – relevant considerations – FINANCIAL MANAGEMENT – financial management order – relevant considerations |
Rahman v Zraiter [2022] NSWCATAP 354 Consumer and Commercial Division – Residential Tenancies Decision of: P Durack SC, Senior Member; G Burton SC, Senior Member Catchwords: LANDLORD and TENANT – termination of residential tenancy for breach by non-payment of rent – APPEALS – refusal of an adjournment application by the appellant – no appearance by appellant at hearing of the appeal – leave to appeal refused and dismissal of appeal on the merits rather than under s 55 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) – no error of law or appealable error of fact established |
Blackman v Ya [2022] NSWCATAP 355 Consumer and Commercial Division – Residential Tenancies Decision of: I R Coleman SC ADCJ, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – Decision of the Tribunal – whether question of law – whether some other error including being against the weight of the evidence – APPEALS – Constructive failure to exercise jurisdiction – Failure to address a material issue and material evidence – APPEALS – Procedural fairness – Failure to give reasons – Adequacy of reasons |
Nepean Blue Mountains Local Health District v ENY [2022] NSWCATAP 356 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: APPEAL – statutory interpretation – whether “incapable” in s 7 Health Records and Information Privacy Act 2002 (NSW) includes “death” of individual to whom health records and information relate |
DMP v Sydney Local Health District [2022] NSWCATAP 357 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; P H Molony, Senior Member Catchwords: APPEALS – Privacy – leave to appeal – adequacy of reasons – delay in providing reasons – procedural fairness – failure to resolve a factual dispute – failure to consider submissions – fresh evidence – failure to make findings |
The Owners – Strata Plan No 16857 v Hyman [2022] NSWCATAP 358 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member Catchwords: APPEAL – from interlocutory order of Consumer and Commercial Division – privilege attaching to expert report – whether dominant purpose of report was draft for consultation or lodgment in the Tribunal |
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Kaur v Sharma (No 2) [2022] NSWCATAP 360 Consumer and Commercial Division – Residential Tenancies Decision of: K Rosser, Principal Member; R Titterton OAM, Senior Member Catchwords: APPEAL – Ancillary decision – application for a warrant for possession |
Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd (No 2) [2022] NSWCATAP 361 Consumer and Commercial Division – Commercial Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – s 63 Civil and Administrative Tribunal Act 2013 – power to correct for accidental error or omission – whether appropriate where no submissions and/or factual finding made in substantive appeal concerning making an order for payment of money – COSTS – operation of r 38 and r 38A of the Civil and Administrative Tribunal Rules 2014 – meaning of “proceedings” – meaning of “amount claimed or in dispute” – application of rule to proceedings where there are two applications, one in the nature of a cross-application – relevance of issues raised in cross-application to determine what, if any, amount is in dispute in the primary proceedings |
Mourched v Chief Commissioner of State Revenue [2022] NSWCATAP 362 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; S Higgins, Senior Member Catchwords: REVENUE LAW – land tax – proper construction of the exemption in s 10(1)(u) of the Land Tax Management Act 1956 – proper construction of whether or not land ‘is used solely for the provision of an approved education and care service’ – proper construction of whether or not the land ‘is the place where the children are educated or cared for by the service’ |
Rona v Opes Lifestyle Homes Pty Ltd [2022] NSWCATAP 363 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; C Mulvey, Senior Member Catchwords: APPEALS – Home Building Act 1989 – decision against the weight of evidence – total failure of consideration |
Liang v Jasta Constructions Pty Ltd [2022] NSWCATAP 364 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – no alleged errors identified or apparent – no substance to the appeal – no question of principle |
Allsopp v The Owners - Strata Plan No 6006 [2022] NSWCATAP 365 Consumer and Commercial Division – Strata Schemes Decision of: P Durack SC, Senior Member; G Burton SC, Senior Member Catchwords: LAND LAW – Strata title – whether compulsory strata managing agent should be appointed – failure by owners corporation to comply with provisions of the Strata Schemes Management Act 2015 (NSW) – APPEAL – no error of law established – no appellable error of fact established |
Sengos v Hassan [2022] NSWCATAP 366 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT– leave to appeal from decision of Consumer and Commercial Division of NCAT – appeal out of time – short delay in lodging appeal – merits of appeal weak – leave to adduce further evidence – no grounds established to grant leave to appeal – no question of principle or public importance |
FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367 Administrative and Equal Opportunity Division Decision of: The Hon D.A. Cowdroy AO KC, Principal Member; Dr R Dubler SC, Senior Member Catchwords: Administrative Law – public access to government information – request for information – balancing public interest considerations – prejudice to the supply of confidential information that facilitates the effective exercise of an agency’s functions – whether Tribunal at first instance misinterpreted the provisions of the Surveillance Devices Act and Surveillance Devices Regulations |
Qiu v Maygood Australia Pty Ltd [2022] NSWCATAP 368 Consumer and Commercial Division – Residential Tenancies Decision of: R C Titterton OAM, Senior Member; A Boxall, Senior Member Catchwords: APPEALS – Procedure – Time limits – Extension of time – Principles – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rent – Excessive rent |
EEC v Federation Council [2022] NSWCATAP 369 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member Catchwords: APPEALS – whether decision based on material errors of fact – whether further evidence should be received in the appeal or application for leave to appeal |
Gaynor v Burns [2022] NSWCATAP 370 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – Whether party to proceedings under Anti-Discrimination Act 1977 (NSW) needs Tribunal’s agreement to withdraw proceedings – Whether Tribunal has discretion to dismiss such proceedings when they are withdrawn – Whether leave to appeal from Tribunal’s decisions should be granted |
ZXJ v ZXK [2022] NSWCATAP 371 Guardianship Division Decision of: A Britton, Deputy President; A Boxall, Senior Member; M Bolt, General Member Catchwords: APPEALS – appeal from decision of the Guardianship Division of NCAT to refuse to award costs COSTS – meaning of “special circumstances” in s 60 Civil and Administrative Tribunal Act 2013 (NSW) – no mandatory considerations – whether Tribunal failed to have regard to a “substantial, clearly articulated argument” |
Monisse v Kontelj [2022] NSWCATAP 373 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member Catchwords: PRACTICE AND PROCEDURE – application for a stay – need for evidence to substantiate allegation stay warranted – factors to be weighed in consideration of granting ex parte stay whilst the application is listed for determination at hearing |
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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. |
