| | | | | NCAT Appeal Panel Decisions Digest Issue 9 of 2022
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| 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 September 2022:
- Crowley v King [2022] NSWCATAP 294: The Appeal Panel set aside the decision of the Tribunal which failed to consider that the prior consent orders, terminating the lease agreement between the parties, remained binding.
- Forest v Suzanne [2022] NSWCATAP 292: The Appeal Panel determined that certain photographic evidence obtained in breach of the Surveillance Devices Act should be considered by the Tribunal. However, the inclusion of the evidence was not material to the Appeal Panel’s ultimate conclusion.
- ZYI v Public Guardian [2022] NSWCATAP 286: The Appeal Panel allowed an appeal to challenge the appointment of the NSW Public Guardian as a guardian, where the circumstances affecting the appointment had materially changed between the Tribunal’s decision and the appeal hearing.
Each case title is hyperlinked to the full decision available on NSW Caselaw.
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In sum: The landlord and tenant were bound by consent orders made in the Tribunal, effecting the termination of the lease, even where the tenant was locked out of the premises seven days prior, making it difficult to comply with the vacant possession obligations of a tenant under s 51 Residential Tenancies Act 1989 (NSW) (RT Act). The Appeal Panel set aside the decision of the Tribunal, which had made an error of law and allowed the appeal in part.
Facts: The appellant (landlord) challenged the decision of NCAT which determined that the respondent (tenant) should be paid the $1200 bond following the termination of the lease and the factual finding that the lease was terminated when the landlord “locked out” the tenant from 7 March 2022. The landlord’s application at first instance claimed compensation for the removal of the tenant’s unclaimed property, mowing the lawns, damage to the roof and an outstanding water usage bill. NCAT found that the tenancy and the roofing issues resulted from the landlord’s breach of the obligation to repair the premises and there was no evidence to support the frustration of the tenancy agreement. The tenant, being unlawfully locked out, was precluded from making arrangements to remove her goods or clean the premises. The condition report showed that the lawns needed mowing prior to the tenancy commencing and NCAT would not award compensation for mowing costs. The landlord appealed the decision on the grounds that he had suffered substantial injustice because the hearing was not fair or equitable and the findings were made against the weight of the evidence.
Held (allowing the appeal in part):
(i) The landlord argued that the Tribunal Member was biased, one-sided and conducted a hearing that clearly preferred the tenant. This complaint was based on the procedure that the Tribunal Member adopted, by identifying, hearing and determining issues one at a time. Section 38(1) NCAT Act provides that a Tribunal can determine its own procedure, and the approach taken at first instance was not incorrect. Whilst there may have been a perception that the proceedings were “one-sided” or “unfair” this was not the test by which reasonable apprehension or actual bias is assessed. The conduct by the Tribunal Member did not meet the threshold of bias by reference to the position of the fair-minded lay observer (the double might test) (at [42], [43]).
(ii) NCAT at first instance made an error of law, when it incorrectly made a finding that consent orders made by the Tribunal, effecting termination of the lease on 14 March 2022 were not binding on the parties. The landlord’s lockout of the tenant on 7 March 2022 did not cause the lease to terminate. The Tribunal was prevented from making this finding, on the basis that the consent orders expressly determined the termination of the lease (at [31], [39] and [40]).
(iii) The effect of the consent orders prevented the tenant from asserting the landlord terminated the tenancy on 7 March 2022. But for the fact the parties were bound by the consent orders, it could have been argued that the landlord re-took possession of the premises when the locks were changed. However, the tenancy continued in accord with the consent orders until the keys were returned to the agent and the tenant’s obligations to give vacant possession under s 51 of the RT Act were fulfilled (at [57],[58],[59]).
(iv) The landlord sought compensation under s 187(1)(d) of the RT Act. Section 30(1) RT Act requires condition reports to be signed. Absent from the outgoing condition report was a signature from either party or a date of assent, therefore it was considered of no assistance. However, the signed ingoing report showed un-mowed lawns. The landlord’s unreceipted invoice for $120 for lawn mowing was not taken as “evidence to the contrary” to displace the notion from the ingoing condition report that the lawns required mowing and the claim for compensation was rejected (at [60], [62], [63]).
(v) The landlord’s claim of $350 for “cleaning” services was unpersuasive, where vacant possession was required for the purpose of demolishing the premises and the lockout of the tenant made it difficult to attend the premise to clean. This claim for compensation was dismissed (at [65], [67] and [69]).
(vi) Whilst the landlord paid for the removal of some items from the premises, the difficulties which the tenant confronted in accessing the property to remove her goods were due to restrictions imposed on her access to the property. This was considered when exercising the discretion under s 187(1)(d) RT Act. It was ordered the landlord be compensated for half of the costs claimed in recognition of the practical restriction confronting the tenant, resulting from the safety concerns and limited access, but acknowledging that items were left behind (at [70], [73], [74]).
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| Consumer and Commercial Division - Tenancy M Harrowell, Deputy President; G Burton SC, Senior Member
In sum: The appellant argued that she was denied procedural fairness when evidence which had been improperly obtained was excluded at first instance. The Appeal Panel found that some of the evidence fell under exceptions to the general prohibition on recording without a person’s consent in s 7 Surveillance Devices Act 2007 (NSW) (SD Act), as the recordings were made for the reasonable protection of the appellant’s lawful interests. Further, the Evidence Act 1995 (NSW) did not apply to these proceedings and the evidence could be included. Despite this, the Appeal Panel found that the appellant had not suffered a substantial miscarriage of justice where the factual findings were not impeached on appeal.
Facts: The appellant had a subleasing agreement with the respondent, for a property which was leased by the respondent from the landlord under the Residential Tenancies Act 2010 (NSW) (RT Act). A dispute arose between the appellant and respondent, concerning allegations of aggressive and antisocial behaviours, to the extent the respondent called the police on one occasion, who forcibly opened the appellant’s bedroom door. At first instance, the Tribunal awarded the appellant $115, when it found there had been a breach of the obligation of the landlord to provide quiet enjoyment to the appellant under s 50 of the RT Act. The Tribunal also made findings that the appellant had contributed to the conflict which caused the landlord’s breach and that her quiet enjoyment had not been breached by the respondent on other occasions. The appellant appealed those factual findings and argued that she had been denied procedural fairness when the Tribunal ignored certain aspects of her evidence and failed to disclose reasons for its decision in relation to its factual findings.
Held (dismissing the appeal):
(i) The evidence excluded from the first instance decision comprised of sound and video recordings, each of which were recorded by the appellant without the respondent’s consent. The Tribunal found all the recordings to be in contravention of ss 7 and 8 of the SD Act. However, the Appeal Panel allowed one of the sound recordings to be included as evidence under s 7(3)(b) SD Act, as it found that it was recorded for the “reasonable protection of the appellant’s legal interests,” namely, the right to quiet enjoyment in the use of her room within the residential premises thereby falling under the exemption in s 7(3)(b) SD Act: [51].
(ii) One of the video recordings found not to be in contravention of s 8 SD Act, insofar as the device was used as an optical surveillance device. The prohibition in s 8 relates to recording on property where entry has occurred without consent of the owner or occupier of the premises. The respondent, as occupier, had consented to entry onto the premises of the appellant in the residential tenancy agreement: [52].
(iii) The Appeal Panel concluded that the video recording which was admitted into evidence provided strong support for the Tribunal’s factual finding that the appellant contributed to the conflict between her and the respondent. In the context of living together, the mere fact that the parties were in personal conflict does not, of itself, demonstrate a breach of the appellant’s right to quiet enjoyment by the respondent (at [73], [74], [75]).
(iv) The Appeal Panel found that the appellant did not suffer a substantial miscarriage of justice and that the Tribunal did not make findings that were not fair and equitable or were against the weight of evidence: [92].
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| Guardianship Division
I R Coleman SC ADCJ, Principal Member; C Fougere, Principal Member; M Oxenham, General Member
In sum: The Tribunal appointed ZYI and the Public Gaudian as joint guardians of a Subject Person, who was receiving intensive inpatient treatment for dementia. The Appeal Panel exercised its discretion under s 80(3) Civil and Administrative Tribunal Act 2013 (NCAT Act) to determine the matter by way of a new hearing, considering the circumstances which led to the joint appointment had significantly changed between the Tribunal’s orders and the appeal hearing.
Facts: The appellant (ZYI) appealed against the order of the Tribunal concerning the appointment of the Public Guardian and ZYI as joint guardians for her mother (the Subject Person). ZYI was allocated the functions concerning health care, medical treatment, and the services to be provided to the Subject Person. The Public Guardian was to decide where the Subject Person should reside. At the time the Tribunal orders were made, the Subject Person was an inpatient in a geriatric psychiatry unit within a Sydney Hospital, receiving treatment for concerning behaviours resulting from dementia. A disagreement between ZYI and the medical team treating the Subject Person as to when she should be discharged home led to the appointment of the Public Guardian as decision maker for this function. Approximately two months after the Tribunal’s decision, the Subject Person was discharged from hospital to live with ZYI with the consent of the Public Guardian, following a significant improvement in her health. ZYI appealed the decision of the Tribunal, arguing that the accomodation function for the Subject Person should vest in her.
Held (allowing the appeal):
(i) Given the substantial change in circumstances between the first instance decision and the appeal, the Appeal Panel exercised its discretion under s 80(3) NCAT Act to deal with the appeal by way of new hearing and allowing further evidence. It reasoned that exercising this discretion gave paramountcy to the Subject Person’s welfare and interests: s 4(a) Guardianship Act 1987. It also enabled the timely resolution of issues, reduced the likelihood of review hearings and aligned with the overarching principles in s 36 NCAT Act (at [40], [41]).
(ii) Medical evidence at first instance indicated that the Subject Person needed constant care. The Tribunal was not satisfied that ZYI “heard” the advice of the doctors that it was unsafe to discharge the Subject Person, leading to the appointment of the Public Guardian. During the appeal, a new report from the medical treating team was tendered, indicating that the Subject Person had greatly improved, no longer required psychotropic medication and the multidisciplinary team agreed she could be discharged home with ZYI. The Public Guardian approved this decision. ZYI argued that whilst the immediate decision making function may be otiose, she still pursued the appeal as she wished to be appointed the guardian for all aspects of the Subject Person’s care for the future (at [25], [26], [28], [29] and [33]).
(iii) After examining the reasons for the decision, the Appeal Panel found no obvious error of law and ZYI failed to seek leave on any other ground. Despite assertions to the contrary, it found that the Tribunal took into consideration the Subject Person’s views and correctly applied the statutory criteria in s 17(1) Guardianship Act 1987 (at [30],[35]).
(iv) It was not necessary to find an error of law, but compelling reasons to exercise the discretion needed to be established. It found the evidence of material change in the Subject Person’s circumstances since the Tribunal’s decision was a significant factor in favour of exercising the discretion under s 80(3) NCAT Act. Being discharged into the care of ZYI was directly relevant to the issues raised on appeal, even where no error of law was established and the time sensitive need for the Public Guardian to make objective assessments had also passed (at [38], [39]).
(v) The Appeal Panel was unable to deal with the new hearing at the same time as the appeal hearing as only the legal representative for ZYI was present. Directions were made, requesting the parties to file further information on the Subject Person’s current circumstances and any further information which was relevant, as well as submissions on whether the hearing should be “on the papers”: [41].
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| | | Guardianship Division
Decision of: I R Coleman SC ADCJ, Principal Member; C Fougere, Principal Member; M Oxenham, General Member
Catchwords: APPEAL – appeal from proceedings in Guardianship Division - discretion to deal with appeal by way of a new hearing – no question of law raised – material change in circumstances of Subject Person
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| Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member
Catchwords: LEASES AND TENACIES – leave to appeal – no question of principle - residential tenancy database
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| Consumer and Commercial Division - Commercial
Decision of: S Thode, Senior Member; D Fairlie, Senior Member
Catchwords: APPEALS - RETAIL LEASE – Retail Leases Act 1994 – whether findings against the weight of evidence
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| Consumer and Commercial Division - Strata
Decision of: K Ransome, Senior Member; D Fairlie, Senior member
Catchwords: COSTS - costs on appeal - whether special circumstances established
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| Consumer and Commercial Division - Tenancy
Decision of: Dr R Dubler SC, Senior Member; A Boxall, Senior Member
Catchwords: APPEALS – RESIDENTIAL TENANCY – Orders made in the absence of the Appellant – whether denial of procedural fairness and the hearing rule
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| Consumer and Commercial Division - Home Building
Decision of: A Suthers, Principal Member
Catchwords: PRACTICE AND PROCEDURE – application for a stay – need for evidence to substantiate allegation appeal may be rendered nugatory due to liquidation of appellant company if judgment enforced – need for thorough and candid disclosure of financial position
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| Consumer and Commercial - Tenancy
Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Quiet enjoyment – shared accommodation – breakdown in relationship between flatmates EVIDENCE – Surveillance Devices Act 2007 – unauthorised recording – admissibility where rules of evidence do not apply – discretion to admit – factors relevant to exercise of discretion.
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| Consumer and Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member
Catchwords: APPEAL- residential tenancy - landlord a social housing provider - termination under s 84 of Residential Tenancies Act 2010 (NSW) - application to succeed to the tenancy of the departing tenant- application of s 77 - whether notice of termination was retaliatory - execution of warrant where warrant not shown to the tenant
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| Consumer and Commercial Division - Tenancy
Decision of: G Ellis SC, Senior Member; P H Molony, Senior Member
Catchwords: APPEALS – question of law – whether parties estopped from denying effect of earlier consent termination orders – appeal allowed – rehearing by Appeal Panel with fresh evidence allowed
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| Consumer and Commercial Division - Tenancy
Decision of: D Robertson, Senior Member; S Higgins, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2021 (NSW) – s 44 – Order that rent excessive by reason of the withdrawal of services or facilities – Approach to the assessment of the appropriate reduction in rent APPEAL – Question of law – Inadequacy of reasons – Obligation to disclose the process of reasoning leading to the conclusions reached
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| Consumer and Commercial Division - Home Building
Decision of: G Blake AM SC, Senior Member; G Furness SC, Senior Member
Catchwords: APPEALS — Constructive failure to exercise jurisdiction — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons
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| | Zonnevylle v Secretary, Department of Education [2022] NSWCATAP 297 Administrative and Equal Opportunity Division
Decision of: I R Coleman SC ADCJ, Principal Member; Dr J Lucy, Senior Member
Catchwords: PRACTICE AND PROCEDURE – Whether Tribunal members should give the Appellant leave to record the proceedings by the Appellant - Whether a reasonable apprehension of bias arises in relation to each member of Tribunal – Whether each member of Tribunal has displayed actual bias – Whether the Tribunal should call witnesses of its own motion
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| Consumer and Commercial Division - Tenancy
Decision of: R Dubler SC, Senior Member; A Boxall, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Landlord’s rights to enter residential premises LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) — Termination — Orders
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| Administrative and Equal Opportunity Division
Decision of: I Coleman SC ADCJ, Principal Member; Dr R Dubler SC, Senior Member
Catchwords: APPEAL- administrative review- whether Tribunal erred on question of law or other grounds in affirming decisions of agency pursuant to Government Information (Public Access) Act 2009
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| Administrative and Equal Opportunity Division
Decision of: T Simon, Principal Member; M Gracie, Senior Member
Catchwords: GOVERNMENT INFORMATION —application of s 107 of the Government Information (Public Access) Act 2009 (NSW) - revocation of non-publication orders - interlocutory decision – ancillary decision PROCEDURAL FAIRNESS — dispensing with an oral hearing - irrelevant matters – failure to deal with substance of the application – new evidence.
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| Consumer and Commercial Division - Social Housing
Decision of: R C Titterton OAM, Senior Member; G Burton SC, Senior Member
Catchwords: LEASES AND TENANCIES – questions of law - leave to appeal – no question of principle
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| Consumer and Commercial Division - Motor Vehicles
Decision of: R C Titterton OAM, Senior Member; D Fairlie, Senior Member
Catchwords: CONSUMER LAW – Australian Consumer Law – no question of principle
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| Occupational Division
Decision of: I Coleman SC ADJC, Principal Member; Dr R Dubler SC, Senior Member
Catchwords: ADMINISTRATIVE LAW – Decision to cancel contractor licence and disqualify a licence holder pursuant to s 62 of the Home Building Act 1989 (NSW) - Whether the Tribunal in administrative review proceedings has power to order the builder’s experts access to the home builder’s property for inspection and investigation – Whether in such proceedings the home owner should be joined as a ‘proper’ party PRACTICE AND PROCEEDURE – In administrative review proceedings where a builder challenges suspension of his building licence by Commissioner of Fair Trading, whether the home owner, in respect of adverse findings made by the Commissioner, is a proper party to be joined to the proceedings - Whether the Tribunal in administrative review proceedings has power to order the builder’s experts access to the home builder’s property for inspection and investigation
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| Consumer and Commercial Division - Strata
Decision of: D Robertson, Senior Member; D Charles, Senior Member
Catchwords: LAND LAW – Strata titles – Common Property – Maintenance and repair of common property – Claim by lot owner for compensation pursuant to s 106(5) Strata Schemes Management Act 2015 (NSW) APPEAL – Procedural fairness – Treasurer of owners corporation refused leave to represent the owners corporation until he produced evidence of authority – Whether refusal of leave could have affected the outcome of the proceedings
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| Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Deputy President; G Blake AM SC, Senior Member
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Enforceability of contract – requirement for writing – whether non-compliance with s 7 requirements renders contact unenforceable by contractor EVIDENCE – admissibility where rules of evidence do not apply – Procedural Direction 3 – Expert Evidence – failure to sign and date report – procedural fairness
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| Consumer and Commercial Division - Tenancy
Decision of: D Robertson, Senior Member; D Fairlie, Senior Member
Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 50 – Quiet enjoyment – Whether service of retaliatory termination notice was a breach of quiet enjoyment LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 115 – Retaliatory eviction - Whether notice of termination given after tenant resisted a rent increase was retaliatory LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Compensation for breach of tenancy agreement – Damages not recoverable in respect of wages lost by third party who provided assistance voluntarily
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| Consumer and Commercial Division - Strata
Decision of: I R Coleman SC ADCJ, Principal Member
Catchwords: APPEAL – Costs of discontinued appeal - whether special circumstances established pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW)
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| Consumer and Commercial Division - Tenancy
Decision of: Dr R Dubler SC, Senior Member; E Bishop, Senior Member
Catchwords: RESIDENTIAL TENANCY – allegation of bias – leave to appeal sought claiming decision against the weight of the evidence – no question of principle
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| Consumer and Commercial Division - Motor Vehicles
Decision of: I R Coleman SC ADCJ, Principal Member; R Titterton OAM, Senior Member
Catchwords: APPEAL- consumer claim- whether Tribunal erred in failing to award damages for breach of contract and granting relief in the nature of specific performance
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| Consumer and Commercial Division - Home Building
Decision of: C P Fougere, Principal Member; G Ellis SC, Senior Member
Catchwords: APPEAL – No question of principle
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| Consumer and Commercial Division - Commercial
Decision of: A Suthers, Principal Member
Catchwords: APPEAL – application for a stay for alleged tenant to maintain possession of retail premises pending determination of the appeal
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| Consumer and Commercial Division - Commercial
Decision of: I R Coleman SC ADCJ, Principal Member; M Gracie, Senior Member
Catchwords: APPEAL- whether Tribunal erred in finding that provisions of Covid-19 Regulations only invoked when impacted lessee provides financial information to lessor- whether Tribunal erred in failing to find that lessor’s request to mediate after lessee vacated premises removed bar to lessor recovering rental arrears accrued during period in which lessee was impacted lessee pursuant to Covid-19 Regulations
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| Consumer and Commercial Division - Tenancy
Decision of: I Coleman SC ADCJ, Principal Member; D Ziegler, Senior Member
Catchwords: APPEAL – against the weight of evidence – fair and equitable
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| Consumer and Commercial Division - Home Building
Decision of: S Thode, Senior Member; P H Molony, Senior Member
Catchwords: APPEALS – refusal to allow fresh evidence as reasonably available before initial hearing – renewal of proceedings following non-compliance with work order – money order made – decision not to make further work order open to the Tribunal - leave to appeal refused.
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| Consumer and Commercial Division - Strata
Decision of: K Rosser, Principal Member; C Fougere, Principal Member
Catchwords: APPEAL – Strata - Contributions to a special levy - power to alter contributions – ambit of order making power under s 87 and s 232(1) – effect of order varying unit entitlement
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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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