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| NCAT Appeal Decisions Digest January 2017 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 the month of January 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Mesiha v Murrell [2017] NSWCATAP 1
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; The Hon B Tamberlin QC, Principal Member Summary: The Appeal Panel considered whether the Tribunal at first instance erred in rejecting an application to extend time for the filing and service of evidence. As a starting point, the Appeal Panel (at [40]) observed that “there is no absolute right to an adjournment, even where an explanation is provided for any non-compliance”.
Adapting the High Court’s decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 39ff, which considered the Court’s discretion to allow amendments to pleadings, the Appeal Panel (at [45]) derived a set of principles for the Tribunal to be apply when determining whether an application for an extension of time should be granted. The principles are set out as follows:
“(1) the just resolution of proceedings remains the paramount consideration;
(2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters;
(3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings;
(4) a party should be afforded a reasonable opportunity to present its case;
(5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal;
(6) the nature of the case and its importance to the party seeking an extension of time needs to be considered;
(7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal;
(8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants;
(9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.”
Ultimately, the Appeal Panel held that the Tribunal had not erred in the exercise of discretion, finding (at [58]) that “the Tribunal correctly identified the matters relevant to the exercise of its discretion, made findings of relevant facts and weighed those facts in deciding what to do.”
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| Montales-Cook v Wilson [2017] NSWCATAP 2
Consumer & Commercial Division - General
Judgment of: A Britton, Principal Member Summary: The Appeal Panel considered whether or not to grant a stay for a decision pending appeal relying at [7] on the principles applicable to stays pending appeal set out in the earlier decision of Wright J in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. The Appeal Panel refused to grant a stay because the appellant failed to adduce evidence to establish that there was any likelihood that the money paid under the order appealed against would be irrecoverable or that there were other relevant grounds for granting a stay:
[11] [The appellant] has not adduced any evidence which might suggest that if the appeal is successful she is unlikely to be able to recover the amount the subject of the disputed order from [the respondent]. Nor has she adduced any evidence which might support a finding that compliance with the order made by the Tribunal would subject her to any particular hardship. Further, she has not identified any public interest which might favour the granting of stay:
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| Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14
Consumer & Commercial Division - General
Judgment of: A P Coleman SC, Senior Member; D Fairlie, Senior Member Summary: The Appeal Panel considered the onus of proof that a bailor of goods bears in bailment cases. Although the Appeal Panel affirmed that the onus of proof generally rests with a bailee to “prove that any damage to the bailed goods was not caused its negligence or actions” [27], the Appeal Panel observed that, nevertheless:
[42] [the] principle, and the duty of care on a bailee, does not mean that the bailee has as the appellant phrased it the "entire onus”. That is, there must be proof by the bailor of the condition of the goods at the time of delivery to the bailee [if the bailor is to succeed in a claim that the goods were not returned in the same condition].
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| Corcoran v Far [2017] NSWCATAP 16
Consumer & Commercial Division - Tenancy
Judgment of: M Schyvens, Deputy President; Prof G Walker, Senior Member Summary: The Appeal Panel considered the requirements of section 10 of the Residential Tenancies Act 2010 (NSW) (the RT Act). The Appeal Panel determined that, on a proper reading of the provision, a residential tenancy agreement need not contain a fixed term for s 10 to be enlivened.
[47] The definition of a residential tenancy agreement provided in s 13 of the RTA does not state that there is a requirement for an agreement to contain a fixed term to amount to a residential tenancy agreement. The RTA explicitly provides for the existence of a periodic agreement which is defined as a residential tenancy agreement that is not a fixed term agreement (s 3(1)). Whilst in practical terms it is more common than not that residential tenancy agreements commence as fixed term agreements and are subsequently replaced by a periodic agreement as contemplated by s 18 of the RTA , there is no prohibition in the RTA of a residential tenancy agreement commencing in the form of a periodic agreement.
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Keyword summaries for NCAT Appeal Panel decisions made during January 2017.
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Mesiha v Murrell [2017] NSWCATAP 1
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; The Hon B Tamberlin QC, Principal MemberCatchwords: Application to extend time to adduce evidence- no absolute entitlement, discretion to extend time, relevant considerations. Leave to amend Notice of Appeal - Notice seeking to add appeal in respect of decision in separate proceedings, requirement for leave to extend time to appeal |
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Montales-Cook v Wilson [2017] NSWCATAP 2
Consumer & Commercial Division - General
Judgment of: A Britton, Principal MemberCatchwords: PRACTICE AND PROCEDURE — stay of the decision under appeal — whether the decision under appeal would be rendered nugatory |
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Bentley v Garage 88 Sydney Pty Ltd [2017] NSWCATAP 3
Consumer & Commercial Division - General
Judgment of: M Harrowell, Principal Member; G Walker, Senior MemberCatchwords: Mistake- unilateral mistake, unconscionable conduct. Damages- breach of contract, time for assessment |
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Access Housing Pty Ltd ACN 065902936 v Rayfield [2017] NSWCATAP 4
Consumer & Commercial Division - Home Building
Judgment of: Dr J Renwick SC, Senior Member; Mr D Fairlie, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – home building – consumer claim – breach of statutory warranty – defective work – compensation based on demolition of building works – denial of procedural fairness – misapplication of Belgrove v Eldridge – refusing to receive evidence of director of the appellant as expert evidence – no error of law |
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Dimunova v Vega [2017] NSWCATAP 5
Consumer & Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President; R Titterton, Senior MemberCatchwords: Duty to maintain – premises in strata scheme |
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T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: K P O'Connor, AM, ADCJ, Deputy President; J McAteer, Senior Member Catchwords: PROCEDURE – Discretion to extend time – Application for reinstatement of an appeal made one day late – In the circumstances, extension of time refused. Civil and Administrative Tribunal Act 2013, s 41 |
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Commissioner of Police v Danis [2017] NSWCATAP 7
Administrative & Equal Opportunity Division - Administrative review
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals; J McAteer, Senior Member Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Agency refusal to deal with access application – Set aside by Tribunal. APPEAL – Interpretation of agency discretion to refuse to deal with access application – Whether Tribunal’s further order requiring agency to disclose within scope of proceedings. Government Information (Public Access) Act 2009, ss 58, 60(1)(d); Administrative Decisions Review Act 1997, s 65 |
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Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9
Consumer & Commercial Division - Social Housing
Judgment of: I H Bailey SC, Senior Member; D Goldstein, Senior Member Catchwords: REPAIRS - When does a breach occur, time limit to bring claim for breach, awareness of the breach. Nature and extent of obligation to maintain in reasonable state of repair, continuing mould infestation caused by different defects in residential premises. CIVIL LIABILITY ACT - Meaning of non-economic loss, whether claim for “stress, anxiety, sickness and embarrassment” is non- economic loss. Order to reduce rent - meaning of “withdrawal or reduction of goods, services and facilities”, premises not fit for habitation, breach of tenant’s right to quiet enjoyment arising from state of the premises and the carrying out of repairs.
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BTH v The Public Guardian [2017] NSWCATAP 10
Guardianship Division
Judgment of: M Schyvens, Deputy President; P Molony, Senior Member (Legal); J Newman, General Member (Community) Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – end of term review of guardianship order – jurisdiction to grant permanent stay – duty to give reasons – adequacy of reasons – mandatory considerations in s 14(2) of the Guardianship Act 1987 (NSW) – appeal allowed – matter remitted for redetermination |
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Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11
Consumer & Commercial Division - Home Building
Judgment of: Hon B Tamberlin QC Principal Member; M Harrowell, Principal Member Catchwords: Procedure- Failure to comply with directions, refusal to adjourn hearing. Evidence- Sufficiency of evidence where no competing evidence, lump sum quotation prepared by reference to detailed scope of work. Leave to appeal- new evidence not reasonably available at the time of the hearing |
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Beattie v Wesley Mission [2017] NSWCATAP 12
Consumer & Commercial Division - Retirement Villages
Judgment of: ADCJ Cowdroy QC, Principal Member; A Boxall, Senior MemberCatchwords: Leave to appeal; appeal as of right; guiding principles; retirement village budget; budget amendments; variation of expenditure; making good deficit; carry forward of deficit; contingencies |
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Gorr v Minkley [2017] NSWCATAP 13
Consumer & Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member; G Walker, Senior MemberCatchwords: Building contract- adjustment to contract sum following deduction of work for which provisional allowance made. Damages- set-off of balance of unpaid contract price. Decision- inferences to be drawn from amount awarded in decision, express reasons contrary to inference. |
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Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14Consumer & Commercial Division - General
Judgment of: A P Coleman SC, Senior Member; D Fairlie, Senior MemberCatchwords: BAILMENT: onus of proof; APPEAL: whether Tribunal applied correct onus, standard of proof; EVIDENCE: new evidence on appeal not allowed |
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Champion Homes Sales Pty Ltd v Commissioner for Fair Trading, Office of Finance, Services and Innovation [2017] NSWCATAP 15
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: L P Robberds QC, Senior Member; L Pearson, Principal Member Catchwords: Appellant company holder of contractor licence under Home Building Act 1989 – disciplinary action by an acting director, Department of Finance Service and Innovation against appellant and four office bearers for breach of statutory warranty under s18 (B) (1) (a) of the Act – appellant required to pay a penalty of $3,500 – appellant and office bearers lodged applications for administrative review of decisions – orders that determinations against office bearers set aside and decisions made that no action be taken – order that determination against appellant be set aside but appellant cautioned – appeal by appellant – failure by Tribunal to give reasons why the appellant should be cautioned |
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Corcoran v Far [2017] NSWCATAP 16
Consumer & Commercial Division - Tenancy
Judgment of: M Schyvens, Deputy President; Prof G Walker, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Residential Tenancies Act (NSW) – question of law – jurisdiction – shared households – requirements of s 10 of the Residential Tenancies Act – appeal allowed |
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Baxter v Telgate Pty Ltd [2017] NSWCATAP 17
Consumer & Commercial Division - General
Judgment of: L Pearson, Principal Member; D Charles, Senior MemberCatchwords: APPEAL – consumer claim – defects in appearance and finish of bed furniture - finding of no major failure under ACL NSW - whether question of law – procedural fairness – bias - no error of law – leave to appeal – whether substantial miscarriage of justice – leave refused |
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Nayak v Rockwall Constructions Pty Ltd [2017] NSWCATAP 18
Consumer & Commercial Division - Home Building
Judgment of: L P Robberds QC, Senior Member; D A C Robertson, Senior Member Catchwords: Building contract – claims for variations – contract requirements not followed – alternative claims based on quantum meruit – elements of a quantum meruit claim – whether evidence established those claims |
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Girgis v Makinadjian [2017] NSWCATAP 19
Consumer & Commercial Division - General
Judgment of: M Harrowell, Principal Member; R Titterton, Senior MemberCatchwords: Leave to appeal- requirements for leave, evidence not reasonably available Contract- interpretation of obligations, required standard of work, quotation not requiring particular standard of visual finish, whether obligation to provide a “visually acceptable and improved finish” can be inferred |
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AIN v Medical Council of New South Wales [2017] NSWCATAP 21
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; P Durack SC, Senior MemberCatchwords: ADMINISTRATIVE REVIEW – application under Privacy and Personal Information Protection Act 1998 – access to personal information – scope of application – meaning of s 14 of PPIP Act – identification of matters relevant to liability and remedy |
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AIN v Medical Council of New South Wales [2017] NSWCATAP 22
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; P Durack SC, Senior MemberCatchwords: ADMINISTRATIVE REVIEW – application under Privacy and Personal Information Protection Act 1998 – collection of personal information – meaning of lawful purpose – failure to exercise jurisdiction by not addressing Appellant’s case on unlawfulness - disclosure of information – effect of non-publication order |
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AIN v Medical Council of New South Wales [2017] NSWCATAP 23
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; P Durack SC, Senior MemberCatchwords: ADMINISTRATVIE REVIEW – application under Privacy and Personal Information Protection Act 1998 – use and disclosure of personal information – duration of disclosure contravention - nature and content of disclosure - whether use as well as disclosure – errors of fact and law |
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