| | | | | NCAT Appeal Decisions Digest January 2018 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, including headnotes for some of the more significant decisions.
The following NCAT Appeal Panel decisions were handed down during January 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Abed v Cosgrove trading as Alison Arts; Cosgrove v Abed [2018] NSWCATAP 4
Consumer and Commercial Division - General
Decision of: L P Robberds QC, Senior Member; G Sarginson, Senior Member
Background: A motor vehicle owner contracted with a vehicle artwork painter, to paint a ‘grim reaper’ on her Holden Commodore, at a cost of $4,050.00. To preserve the paintwork, the vehicle needed to have a clear-coat applied by a third party. The clear-coat was not applied to the vehicle, and the paintwork deteriorated. The owner commenced proceedings in the Tribunal seeking damages, including for the cost of re-painting the vehicle.
At first instance, the Tribunal awarded $10,897.50 to the vehicle owner, comprising a refund of the $4,050.00 paid to the artist and damages of $6,847.50 to restore the vehicle to its “pre-incident condition” ([28]). The vehicle owner appealed, contending that the Tribunal had made errors of fact and law by failing to give “adequate consideration” to her experts’ evidence, and finding that one of the artist’s experts had inspected the vehicle, when he hadn’t, and thereby making a decision that was against the weight of evidence.
Held (dismissing the appeal): (i) although there was an error in the finding that the artist’s expert witness had “inspected the vehicle”, it was not “one upon which the decision depends, so that the decision is vitiated by the error” (at [38] and [48]).
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 at [78]; 188 LGERA 26; Trazivuk v Motor Accidents Authority (NSW) & Ors (2010) 57 MVR 9; [2010] NSWCA 287 at [110], applied. Further, “where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried” ([39]). Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [67], considered.
(ii) A party seeking a new trial on the ground of a substantial miscarriage of justice (under cl 12 Sch 4 of the NCAT Act) needs an exceptionally strong case because it must be shown that the evidence preponderates against the decision to show that it was unreasonable and unjust ([54]). Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41 and 42), applied. The Appeal Panel was not satisfied that the original decision so strongly preponderates against the evidence that it satisfied the test of being “against the weight of evidence” ([55]).
Cross appeal: The artist also attempted to file a cross appeal, outside the 28 day filing period. The Appeal Panel was not satisfied that the filing period should be extended (under s 41 of the NCAT Act), and found that there was no realistic prospect of the artist succeeding in her proposed cross appeal in any event ([73]-[79]).
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| Leung v Alexakis [2018] NSWCATAP 11
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; G Walker, Senior Member
Background: The appellants were the successors in title to residential premises, purchased from the respondent, who held an owner builder permit issued under the Home Building Act 1989 (HB Act). The appellants applied to the Tribunal, seeking to enforce the statutory warranties pursuant to 18C of the HB Act, and claiming $100,000 to repair water leak issues.
At first instance, the Tribunal ordered the respondent, at her own cost, to engage appropriately qualified and licensed trade persons to complete the works. The appellants appealed, seeking an award of damages instead.
The appeal raised two questions, both related to work originally carried out by an owner builder:
1) Was the Tribunal obliged to have regard to the principle set out in s 48MA of the HB Act, namely that rectification of defective work is the preferred outcome in proceedings?
2) If yes, did the Tribunal properly exercise its discretion?
Held (allowing the appeal, in part): (i) s 48MA applies to “the holder of an owner-builder permit against whom a building claim is made” ([15]), and includes “work done personally or for which the person was responsible” (at [117]):
Otherwise, an owner-builder could simply have others physically do the work on their behalf (whether or not under a contract) and thereby avoid any liability of the owner-builder to a successor in title and defeat the purpose of s18C. ([127])
Chan v Acres (2015) NSWSC 1885, considered.
(ii) the Tribunal held (at [139]):
[Section] 48O(2) provides the Tribunal can make a work order even if not asked for by the applicant who makes a claim for defective residential building work. In doing so, s 48MA requires the Tribunal “to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome”. Section 48MA is not, in terms, mandatory. Rather, it is a factor to be taken account of in the exercise of a discretion about what orders should be made to resolve a building claim.
(iii) Having determined that the Tribunal made an error of law in respect of the discretion under s 48MA, the Appeal Panel was able to re-exercise the discretion, pursuant to s 81(2) of the NCAT Act: [140] – [142]. Noting that the proceedings arose on the basis of the owner builder’s apparent inability to perform the work properly ([153]), the Appeal Panel made orders that required in effect (at [157]):
1) the rectification works must start and finish within a specified timeframe, and
2) be certified and inspected by an independent certifier, at the respondent’s expense; and
3) in the event of non-compliance, the appellants are entitled to seek a money order or other relief as permitted by Sch 4 cl 8 of the NCAT Act.
In this way, effect could be given to the principle in s 48MA with no injustice to the appellants ([158]). |
| Corcoran v Far [2018] NSWCATAP 13
Consumer and Commercial Division - Residential Tenancy
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member
Background: The appellant rented a bedroom in the respondent landlord’s home. The tenancy ended on hostile terms; with the appellant alleging that the respondent had harassed and physically threatened him, disrupted his privacy, denied him access to certain services and facilities, and, ultimately, locked him out of the premises.
The appellant commenced proceedings in the Tribunal seeking repayment of the bond, and compensation. At first instance, the Tribunal ordered the respondent to pay the appellant the bond, but dismissed the claims for compensation.
On appeal, the appellant identified sixteen grounds, comprising numerous errors of law and a failure to afford procedural fairness (at [16]).
Held (allowing the appeal in part): (i) by wrongly excluding the appellant from the premises, the respondent repudiated the tenancy agreement, which entitled the appellant to terminate the agreement and claim damages: McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 at 476-477 (at [58]).
(ii) The Tribunal erred in failing to exercise its discretion to award compensation under s 187(1)(d) of the Residential Tenancies Act 2010 (at [69]). Section 187(1) relevantly provides:
The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders: …
(d) an order as to compensation, …(emphasis added)
Applying by analogy the reasoning in State Rail Authority v Consumer Claims Tribunal (1988) 14 NSWLR 473 at 478-9), the Appeal Panel determined (at [67]) that:
[A]ny discretion provided by s 187(1)(d) does not allow withholding all remedies where loss and damage has been suffered in consequence of a breach. Rather, the discretion in this regard may allow a particular type of remedy to be granted where alternatives are available – for example rent reduction as opposed to an award of monetary compensation.
The appellant was awarded $615.00, comprising reimbursement for direct economic loss and general damages of $500 to compensate for “any moving and ancillary costs and the inconvenience arising from the need to move early” (at [79] – [80]). |
| The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member
Background: The owner of a lot in strata scheme filed an application against the owners corporation, seeking orders under ss 106, 126 and 232 of the Strata Schemes Management Act, 2015 (2015 Management Act), as well as $51,437.97 for loss of rent, due to failure by the owners corporation to maintain the building in an adequate state of repair.
At first instance, the Tribunal awarded the owner $55,943.24. The owners corporation appealed.
There were two grounds of appeal:
1) Does the Tribunal have power under s 232 of the 2015 Management Act to order that an owners corporation pay damages, pursuant to s 106(5), to a lot owner for loss suffered as a result of a contravention of s 106?
2) Does s 106(5) operate retrospectively to make an owners corporation liable for a breach of statutory duty that occurred prior to the commencement of the 2015 Management Act?
Held (allowing the appeal, in part): (i) the Tribunal had power under ss 106(5) and 232 of the 2015 Management Act to make an order for the payment of damages arising from an owners corporation breach of statutory duty ([95] – [96]).
Section 106(5) created a right of action to recover damages where an owners corporation had breached its statutory duty and this led to reasonably foreseeable loss ([80] – [81]), and s 232 empowered the Tribunal to “settle a dispute or complaint” including by making a determination contrary to the interests or desires of one or more parties ([63]). The Appeal Panel summarised the position at [91]:
In the present case, the wording of s 232 is not such to lend itself to any limitations of the type for which the appellant contends. It is a power to make an order to settle a dispute, the form of order not being confined to requiring a party to perform or refrain from performing a duty, carrying out an action or undertaking some defined task. Consistent with the objects of the 2015 Management Act, there is no reason to conclude that the order making power excludes a money order for the award of damages or that the jurisdiction of the Tribunal is confined to a particular monetary limit.
(ii) Section 106(5) did not operate retrospectively. Damage suffered prior to commencement of the 2015 Management Act could not be recovered ([123] – [129]). The Appeal Panel also noted (at [128]) that:
[T]he obligation of an owners corporation to maintain and keep in a good and serviceable state of repair is a continuing obligation, breach of which occurs on each and every day the duty is not performed. As such, where there are multiple breaches of a statutory duty, each breach constitutes a separate cause of action: Kingston Earthworks Pty Ltd v Isles (1997) 6 TASR 433 at 438 per Zeman J (with whom Cox CJ and Crawford J agreed). |
| Heritage Master Builders Pty Ltd v Lu [2018] NSWCATAP 16
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member
Background: The respondent homeowner engaged the appellant to paint the exterior walls of his house, on the basis that the appellant could “achieve a 90% colour match” with the brick colour of his new garage. A dispute arose, and the respondent sought a refund of $10,000 already paid to the appellant, claiming that he had not met the colour match obligation.
At first instance, the Tribunal accepted the respondent’s evidence and ordered that the appellant pay him $6810.00.
On appeal, the appellant contended that the Tribunal erred by accepting ‘expert evidence’ from a contractor who was not licenced to do the work in question, and whose report did not specifically state that there had been non-compliance with the 90% requirement.
Held (refusing leave to appeal and dismissing the appeal): (i) no error of law was established, nor could the appellant demonstrate that he had suffered a substantial miscarriage of justice.
In determining whether leave to appeal was required, the Appeal Panel (at [26]) followed the decision in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]:
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
(ii) The Tribunal was entitled to form its own opinion as to the extent to which the brick colours did not match ([39]):
This was an available finding on the evidence because the bricks in the different parts of the wall were of different colour, the painted bricks being orange colour with grey spots, the new extension brown and tan. As they were different colours, they could not meet the “90%” requirement [and] the absence of a statement by an expert to this effect was of no consequence.
(iii) Although the respondent’s expert was not licensed to do the work in question, this did not provide a sufficient basis to disregard his opinion, because (at [48] – [53]):
1) The expert had available to him two quotations from companies ostensibly licensed to carry out the work ([50]);
2) These two quotations, when coupled with the expert’s estimation of the rectification costs, provided a proper foundation for his opinion ([51]);
3) The expert ultimately formed his own opinion based on all the material ([52]); and
4) In the absence of any contradictory expert evidence from the appellant, it was open to the Tribunal to accept this assessment ([53]). |
| Escape Media Pty Limited v Lawler [2018] NSWCATAP 17
Consumer and Commercial Division - General
Decision of: M Craig QC ADCJ, Principal Member; D Goldstein, Senior Member
Background: The respondent purchased a two year subscription to a magazine published by the appellant. The appellant ran a promotion titled “The Ultimate Escape”, which offered subscribers the chance to win a prize said to be valued at $151,291. The respondent won, but on receipt of his prize determined its value had been overstated by at least $30,000.
The respondent sought an order that the appellant pay him the sum of $30,000, founded upon breaches of the Australian Consumer Law (NSW) (the ACL). At first instance, the Tribunal awarded the respondent $25,000, providing oral reasons only. Full written reasons were subsequently given, at the appellant’s request ([7]).
On appeal, there were two issues for determination: whether the appeal was filed in time, and whether the Member erred in law by awarding compensation without first determining whether the respondent had sustained any loss.
Held (allowing the appeal): (i) the appeal was filed within the time limit prescribed by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. When read with s 62(2) of the Civil and Administrative Tribunal Act 2013, r 25(4)(c) requires that the time for lodging an appeal runs from the time at which written reasons are provided by the Tribunal ([13]), and not from the date of the decision.
[NOTE: A subsequent Appeal Panel decision has taken a different view of the effect of r 25(4)(c) see Taylor v Peslak [2018] NSWCATAP 57 at [27] to [45]]
(ii) The Tribunal erred in law in awarding damages under s 236 of the ACL, because the respondent had sustained no loss as a result of the appellant’s conduct ([24]):
In order to sustain a claim, a claimant relying upon s 236 must establish that damage or loss has been sustained. In the present case, the cause of action is not complete until loss by reason of breach of s 18(1) of the [ACL] is established.
This conclusion was supported (at [26] – [27]) by the decision of the High Court in Marks v GIO Australia Holdings Limited (1998) 196 CLR 494; [1998] HCA 69. In that case, the majority illustrated their conclusion at [50] – [52]:
[50] If a person agrees to pay $50,000 for goods which the vendor falsely represents are worth $100,000 but which are, in fact, worth $50,000, what loss has the purchaser who is misled suffered by agreeing to buy (assuming no more is known)? If a person agrees to pay interest at the rate of 10% for a loan which the lender falsely represents would ordinarily command interest at a rate of 15% but which, in fact, would ordinarily command interest at 12%, what loss has the borrower who is misled suffered by agreeing to borrow (again, assuming no more is known)? And so the examples could be multiplied.
[51] The reason that neither of these persons suffers a loss is that viewed objectively each obtain rights having a value (a value determined objectively) at least equal to what it paid for those rights. …
[52] The fact that each of the misled parties in the examples given may have thought it was to obtain some advantage from the transaction is not to the point. The contravening conduct has left the party that was misled no worse off than it was before the contravention occurred.
The Appeal Panel concluded that the respondent had not been left “worse off” because of the contravening conduct of the appellant. Rather, he had benefited from his competition win ([28]). |
| Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20
Administrative & Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member
Background: As licensee of a Lismore pub, the appellant was convicted for various offences under the Liquor Act 2007 (NSW) (the Liquor Act). His conviction, however, was set aside by the District Court as it was not satisfied that he was the holder of the licence. Consequently, the appellant sought a refund of gaming machine tax, paid to the respondent, on the basis he was not the licensee during the relevant tax period.
The refund was refused, and the appellant applied to the Tribunal for review under s 96 of the Taxation Administration Act 1996 (NSW). At first instance, the Tribunal found that the appellant had not established that he was not the licensee during the relevant period. The appellant appealed.
The issues on appeal concerned the validity of the licence transfer under s 61 of the Liquor Act, and whether the District Court decision on this question operated as a res judicata, which bound the Tribunal.
Held (refusing leave to appeal and dismissing the appeal): (i) the ground regarding the validity of the licence transfer should be dismissed as the issue was not raised at the original hearing ([46] – [47]).
As Deane J said at para 11 in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at [52]):
Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.
Accordingly, the Appeal Panel concluded (at [58] – [59]) that although there were legal issues to be resolved, they were dependent upon the establishment of relevant facts, which was not something the appellant was able to do on appeal.
Further, the Appeal Panel determined (at [60] – [62]) that there was nothing to rebut the presumption of regularity in respect of the decision to transfer the licence, whereby “a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”
Likewise (at [63] – [70]), the appellant was not entitled to make a “collateral challenge”, described in Ousley v The Queen [1997] HCA 49; (1997) 1992 CLR 69; (1997) 148 ALR 510 McHugh J at 98-99:
A collateral attack on an act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision.
(ii) Res judicata did not operate in the present case for three reasons ([80]):
There were different parties, a different claim, and, in any event, the decision of the District Court was a conclusion that it was not satisfied on the evidence that the appellant was the holder of the licence.
(iii) Leave to appeal refused, on the bases that ([91] – [92]):
[N]o relevant injustice is demonstrated nor is it shown that the conclusions by the Tribunal on questions of fact were incorrect. The issues for which leave is sought do not raise questions of principle or matters of public importance. The facts are peculiar to this case. |
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| | | Abdel–Messih v Azzi (No 2) [2018] NSWCATAP 1
Consumer and Commercial Division - Residential Tenancy
Decision of: G K Burton SC, Senior Member; T Simon, Senior Member Catchwords: RESIDENTIAL TENANCY – breach – sub–lease – termination – stay of possession – special costs orders |
| Strata Committee of Owners Corporation SP 75226 v Ison [2018] NSWCATAP 2
Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J Currie, Senior Member Catchwords: APPEAL – Strata scheme management – keeping of animals – consent – consent unreasonably withheld – no issue of principle |
| Sam Komadina t/as We Paint Pools v Kelleher [2018] NSWCATAP 3
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; J Kearney, Senior Member Catchwords: APPEAL – Swimming pool repair – orders made in absence of contractor – whether denial of procedural fairness – whether leave to appeal should be granted |
| Abed v Cosgrove trading as Alison Arts; Cosgrove v Abed [2018]
Consumer and Commercial Division - General
Decision of: L P Robberds QC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEAL – CONSUMER LAW – Motor vehicle – Provision of services – Application of artistic paintwork – Assessment of expert evidence on cost of rectification – Assessment of damages – Whether error of law – No error material to decision established – Whether decision against the weight of evidence – Decision not against weight of evidence. CONSUMER LAW – Motor vehicle – Provision of services – Rectification of paintwork – Assessment of damages – Applicable principles |
| Netregistry Pty Ltd v Shabandeh [2018] NSWCATAP 5
Consumer and Comemrcial Division - General
Decision of: S Westgarth, Deputy President; R Hamilton SC, Senior MemberCatchwords: PROCEDURAL FAIRNESS |
| Polymeris v Coopers Canteen Pty Limited [2018] NSWCATAP 6
Consumer and Commercial Division - Commercial
Decision of: M Craig QC ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: ADMINISTRATIVE LAW – hearing in the absence of a party – notice of hearing sent by ordinary post – hearing date two days after notice posted – notice not received prior to hearing – denial of procedural fairness APPEAL – retail lease purported termination by lessor not legally effective – subsequent conduct and statements of lessor inconsistent with termination – estoppel by conduct – mutual acceptance of parties that lease terminated at time of appeal hearing – utility of appeal |
| My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v Allen [2018] NSWCATAP 7
Consumer and Commercial Division - General
Decision of: P R Callaghan SC, Principal Member; D Goldstein, Senior Member Catchwords: AUSTRALIAN CONSUMER LAW – Guarantee as to acceptable quality and fitness for disclosed purpose. |
| Rainsford v NSW Land and Housing Corporation [2018] NSWCATAP 8
Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Principal Member; M Anderson, Senior Member Catchwords: RESIDENTIAL TENANCY AGREEMENT – landlord’s liability for actions of neighbour, repairs to fence, quiet enjoyment |
| Denkov v Langov [2018] NSWCATAP 9
Consumer and Commercial Division - Home Building
Decision of: R C Titterton, Principal Member; D A C Robertson, Senior MemberCatchwords: APPEAL – application for leave to appeal – no question of principle |
| Wang v Peach Tree Drive Pty Ltd [2018] NSWCATAP 10
Consumer and Commercial Division - Residential Tenancy
Decision of: S Westgarth, Deputy President; M Harrowell, Principal Member Catchwords: REINSTATEMENT – reasonable explanation – section 55 of the Civil and Administrative Tribunal Act 2013 |
| Leung v Alexakis [2018] NSWCATAP 11
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; G Walker, Senior Member Catchwords: HOME BUILDING ACT 1989 – s 48MA – preferred outcome principle, applicability to work done by holder of owner-builder permit OWNER-BUILDER PERMIT – Authority conferred, liability to successor in title for breach of statutory warranties, work to which the statutory warranties apply DISCRETION – failure to exercise, effect of preferred outcome principle in s 48MA on exercise of discretion SECTION 48O – nature and extent of order making power under Home Building Act, effect of s 48O(2) permitting order even if not sought by applicant |
| Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12
Administrative and Equal Opportunity Division
Decision of: K O’Connor, AM, ADCJ, Deputy President Appeals; J Kearney, Senior Member Catchwords: ADMINISTRATIVE LAW – Procedural Fairness – Firearms Licensing – Revocation of Licence – Affirmed by Tribunal – Whether Tribunal accorded Procedural Fairness – Deficiencies in case management – Inadequate consideration of an adjournment application – Not satisfied any practical injustice arose – Appeal dismissed |
| Corcoran v Far [2018] NSWCATAP 13
Consumer and Commercial Division - Residential Tenancy
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member Catchwords: RESIDENTIAL TENANCY AGREEMENT – Damages for breach Repudiation, acceptances of repudiation, damages for economic loss and general damages and aggravated damages |
| Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14
Consumer and Commercial Division - Home Building
Decision of: A Britton, Principal Member Catchwords: COSTS — exercise of the discretion to award costs under r 38(2) of the Civil and Administrative Tribunal Rules 2014 where proceedings are discontinued |
| The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member Catchwords: STATUTORY INTERPRETATION – Strata Schemes Management Act – jurisdiction of the Tribunal to determine claim for damages for breach of statutory duty, meaning of “settle a dispute or complaint”, meaning of “about” when defining disputes by reference to subject matter, retrospective operation of statutory cause of action, limitation on amount that may be awarded for damages DAMAGES – statutory duty to repair and maintain, continuing breach, causation, multiple breaches causing continuing loss |
| Heritage Master Builders Pty Ltd v Lu [2018] NSWCATAP 16
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member Catchwords: EXPERT EVIDENCE – reliance on quotation from unlicensed builder, expert not expressing view on issue for determination, ability of Tribunal to reach relevant decision. Procedural fairness – late delivery of report, party deciding not to seek adjournment |
| Escape Media Pty Limited v Lawler [2018] NSWCATAP 17
Consumer and Commercial Division - General
Decision of: M Craig QC ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – consumer claim – prize winner in competition – competition entry a consequence of magazine subscription – competition winner – value of prize asserted to be less than the promoted prize value – misleading and deceptive conduct – no loss sustained by the respondent – no entitlement to receive recompense for the difference between promoted value of the prize and the asserted value of goods received |
| Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18
Occupational Division
Decision of: M Harrowell, Principal Member; K Rosser, Principal Member Catchwords: DISCIPLINARY PROCEEDINGS – “parity principle”, meaning and applicability, different penalties for licensed contractor company, directors and supervisor. Discretion – error of law, circumstances in which Appeal Panel can intervene |
| Grace v Pepe [2018] NSWCATAP 19
Consumer and Commercial Division - Home Building
Decision of: R L Hamilton SC (Senior Member); T Simon (Principal Member)Catchwords: COSTS – Error of law – building dispute – costs decision – leave to appeal |
| Sidgreaves v Chief Commissioner of State Revenue [2018] NSWCATAP 20
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member Catchwords: GAMING MACHINE TAX ACT – liability for tax, licensee, transfer, dispute concerning fact of transfer, power to determine validity of transfer in deciding what tax is payable. Res judicata / issue estoppel – Circumstances in which it arises, decision in criminal proceedings, failure of prosecutor to prove licence transferred “beyond reasonable doubt”, effect of decision that fact not proved. Collateral challenge – power of Tribunal to conduct judicial review, administrative review proceedings, extent of permissible enquiry by one statutory decision–maker as to validity of actions of another statutory decision maker under different legislation |
| Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan [2018] NSWCATAP 21
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; RL Hamilton SC, Senior Member Catchwords: PRACTICE & PROCEDURE – Meaning of a “decision” – whether Tribunal functus officio – whether leave to appeal out of time should be granted |
| Doudar v Al Marrawy [2018] NSWCATAP 22
Consumer and Commercial Division - General
Decision of: S Westgarth, Deputy President; R Titterton, Principal Member Catchwords: CONSUMER LAW – Where Tribunal dismissed claim – application for leave to appeal – no issue of principle |
| Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; K Rosser, Principal MemberCatchwords: HOME BUILDING ACT – s 48MA, preferred outcome principle, relevant considerations. Fair Trading Act – s 79U – applicability in determination of claims under the Home Building Act – modifications required by Home Building Act – relevance of s 48MA of Home Building Act in application. Discretion – Order making power under s 48O of Home Building Act – application of preferred outcome principle |
| Staniland v Integrity New Homes Pty Ltd (No. 2) [2018] NSWCATAP 24
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal Member Catchwords: COSTS – Costs of appeal involving claim originally brought in the consumer Trader and Tenancy Tribunal, the applicability of rule 38A of the Civil and Administrative Tribunal Act 2013. Discretion – Calderbank offer, special order for costs, relevance in determining what costs order should be made, both parties addressing irrelevant issues, assessment based on issues |
| Wholesale Auto City Pty Ltd v Jobson [2018] NSWCATAP 25
Consumer and Commercial Division - Motor Vehicle
Decision of: S Westgarth, Deputy President; R Titterton, Principal Member Catchwords: QUESTION OF LAW – no substantial miscarriage of justice – where appellant not able to attend hearing |
| Gu v J & W Home Loan Pty Ltd [2018] NSWCATAP 26
Consumer and Commercial Division - General
Decision of: P Durack SC, Senior Member; DAC Robertson, Senior MemberCatchwords: APPEAL – procedural fairness – documents filed by one party claimed not to have been seen by other party until after hearing – significance of documents claimed not to have been seen – no substantial miscarriage of justice |
| Commissioner of Police, New South Wales v Martin; Martin v Commissioner of Police, New South Wales [2018] NSWCATAP 27
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J Currie, Senior Member Catchwords: FIREARMS ACT– Application for permit to display military weapons at public displays commemorating Australian Military History, condition that prohibited firearms to be rendered permanently inoperable, appropriateness of condition where firearms subject to separate licences and permits that permit use and operation, public safety. Discretion– imposition of conditions to ensure public safety, miscarriage of discretion in varying conditions, relevant considerations for public safety. Permit– scope of operation, appropriateness of issuing general authority for unspecified displays or at unspecified locations. Leave to appeal– appeal lodged out of time, exercise of discretion |
| Maiolo v Chiarelli [2018] NSWCATAP 28
Consumer and Commercial Division - Home Building
Decision of: J Harris SC, Senior Member; D Goldstein, Senior MemberCatchwords: Remit of proceedings from the Supreme Court pursuant to section 83 of the Civil and Administrative Tribunal Act 2013 – costs – finding of special circumstances |
| Owners Corporation SP 80412 v Vickery [2018] NSWCATAP 29
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; M Anderson, Senior Member Catchwords: Appeal and cross appeal from proceedings referred by adjudicator under section 164 Strata Schemes Management Act 1996 (NSW) (now repealed) to NCAT – Costs application before the Tribunal – whether jurisdiction and/or power to make a costs order in referral proceedings |
| Barodawala v Little Tootsies Pty Ltd t/as Ray White Carlton [2018] NSWCATAP 30
Consumer and Commercial Division - Commercial
Decision of: L Pearson, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – Application for extension of time to lodge appeal – Length of delay – Reasons for delay – Prospects of success |
| Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon (No 2) [2018] NSWCATAP 31
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; Sarginson, Senior Member Catchwords: COSTS – cl 38A – indemnity costs |
| Rockwall Constructions Pty Ltd v Nayak (No 2) [2018] NSWCATAP 32
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; G Sarginson, Senior Member Catchwords: COSTS – r 38A – successful party – indemnity costs |
| Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 33
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; DAC Robertson, Senior Member Catchwords: APPEAL – Home Building – dispute clause in contract – whether clause had been complied with – clause imposes no substantive requirement – no basis for stay of proceedings – Leave to appeal – interlocutory decision to refuse an adjournment – no error of principle – Content of contract – issue of fact – no error |
| Elhassan v Ayoub [2018] NSWCATAP 34
Consumer and Commercial Division - Residential Tenancy
Decision of: Hennessy LCM, Deputy President; M Harrowell, Principal Member Catchwords: APPEAL – appeal on question of law - STATUTORY CONSTRUCTION – meaning of phrase “fair wear and tear” in s 51(3) of the Residential Tenancies Act 2010 (NSW) |
| B & M Mitchell Pty Ltd v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 35
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; R Hamilton SC, Senior Member Catchwords: BUILDING CONTRACT – fixed price – cost plus |
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