| | | | | | | NCAT Appeal Panel Decisions July 2018 Decisions
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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.
The following NCAT Appeal Panel decisions were handed down during July 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw.
This latest issue features summaries of recent Appeal Panel decisions, including: - Clements v Murphy [2018] NSWCATAP 152, which examined the distinction between defective and incomplete residential building work;
- McDonald v Commissioner for Fair Trading [2018] NSWCATAP 164, regarding the “fit and proper person” test, in respect of an application for an operator licence under the Tattoo Parlours Act 2012 (NSW);
- Brett v Warhaftig [2018] NSWCATAP 167, concerning the Tribunal’s obligations when determining an application on the papers; and
- Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue (No 2) [2018] NSWCATAP 178, which considered whether failing to reply to correspondence, related to non-compliance with Tribunal orders, amounted to “special circumstances” justifying a costs order.
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| Clements v Murphy [2018] NSWCATAP 152
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; DAC Robertson, Senior Member
The appellant builder contracted with the respondent property owners to build their house. Following disputes over payment, the builder served notice to terminate the contract, which the owners accepted.
The owners sought orders that the builder complete the works or pay the cost of completion. The builder was ordered to rectify several items of defective work, and to pay the owners in respect of incomplete work.
On appeal, the builder claimed that the Member erred in either (i) finding that s 48MA of the Home Building Act 1989 (NSW)1 (HB Act) does not apply to incomplete work; or (ii) failing to order the builder to complete both the incomplete and defective works.
Held (dismissing the appeal): (i) section 48MA does not apply to incomplete work, which cannot be characterised as defective ([30]). Such a construction is consistent with the object of s 48MA ([30]):
“…to operate as a preference, not an absolute right. It was to prevent unreasonable refusal of a homeowner to permit access to a building site to a builder who was willing to carry out rectification work.”
Kurmond Homes v Marsden [2018] NSWCATAP 23 at [31] to [32], applied.
The common law “right to rectify” only arises while the contract remains on foot ([24]). Where a building contract has been terminated prior to completion, by reason of the builder’s repudiation, “it would be unusual for the Tribunal to direct the builder to return to complete the work.” ([31])
In characterising works as “incomplete” or “defective”, it was noted that ([20]-[21]):
“[Incomplete work refers to] work which a builder was contracted to perform but has not performed, as contrasted with defective work, which is work a builder has carried out but done so defectively.
There may be some room for debate in individual cases as to whether a particular matter complained of is incomplete or defective work. For example, a failure to install handles on kitchen cupboards may be argued to be incomplete work, but may also be characterised as defective work. However, in general terms, a failure to install major building elements such as windows or a roof would clearly constitute incomplete work and could not properly be characterised as defective work.”
(ii) Although the builder could have been ordered to finish the incomplete work under s 48O, nonetheless that is not the preferred outcome under s 48MA ([33]).
Determining the appropriate remedy, under s 48O, is a discretionary decision. As such, it can only be appealed in line with House v R (1936) 55 CLR 499 at 504-505 ([34]). Fundamentally, “[i]t must appear that some error has been made in exercising the discretion.” None of the bases in House were established in this case ([35]).
(iii) In relation to costs, the amount in issue was at least the amount of the money order; that is, $45,000, which exceeds the $30,000 threshold (rr 38 and 38A of the NCAT Rules) ([50]).
As the appeal was dismissed, the usual order, that the builder should pay the owners’ costs, was made ([51]).
1 Section 48MA of the HB Act provides that “rectification of the defective work by the responsible party is the preferred outcome”.
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| Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; G Sarginson, Senior Member
The appellant builder contracted with the respondent homeowner to renovate a cottage, involving some excavation, waterproofing, and building retaining walls. The homeowner brought proceedings on the basis of defects in the work performed.
At first instance, the builder was ordered to engage geotechnical and structural engineers to provide advice in relation to rectifying the defective works.
On appeal, the builder challenged these orders, saying: (i) the Tribunal failed to make specific findings of breach by the builder of s 18B of the HB Act or the contract; and (ii) the terms of the s 48O orders were not within the Tribunal’s jurisdiction, or were an inappropriate exercise of discretion.
Held (allowing the appeal, in part): (i) there was an evidentiary basis for the Tribunal’s conclusion as to breach by the builder ([16]), and no error of law in failing to precisely set out s 18B and the duties owed by the builder under the statutory warranties ([24] and [67]).
Deacon v National Strategic Constructions Pty Ltd [2017] NSWCATAP 185 at [46], applied.
Section 18B implies the following warranties into residential building contracts: (c) that the work will comply with the law; and (e) that the resulting structure will be reasonably fit for occupation as a dwelling ([28]).
For the purposes of subs 18B(1)(c), the relevant law was the Building Code of Australia (BCA) ([29]). A builder who constructs a wall in the location concerned, in a manner which allows water penetration, will be in breach of the BCA, and thereby subss 18B(1)(c) and (e): “It is the performance of the work in a manner which is in breach of the relevant law which comprises the breach of statutory warranty.” ([38])
Deacon v National Strategic Constructions Pty Ltd [2017] NSWCATAP 185 at [46]-[48], applied.
Relevantly, the defects rendered the cottage not “reasonably fit for occupation as a dwelling” ([18]). Regarding the scope of rectification orders ([19]):
“…the difficulty involved in identifying and proving the scope of work required to rectify defective building work when the precise extent and method of carrying out the necessary rectification work may only be established after invasive or destructive investigations. One reason for this difficulty is that the destructive component of the investigation is frequently the initial step in the rectification works.”
The possibility of deficiencies in the structural engineering drawings cannot displace the builder’s liability for breach of statutory warranties, which caused damage to the respondent and thereby provided a basis for a claim ([39]).
(ii) Although the Tribunal has wide powers under s 48O, orders must nonetheless have a proper basis ([58]):
“The Tribunal must clearly articulate how such an order is a practical and certain resolution of the dispute to put the homeowner in the position the homeowner should have been had the builder performed its obligations under the contract, particularly if the homeowner has not provided evidence in regards to the manner of rectification of the defect(s).”
In practical terms ([59]):
“The evidentiary onus remains on the homeowner to prove both breach (i.e. what is the defective work) and the method of rectification (so that the Tribunal can make an appropriate work order for rectification of the defective work; or if a work order is not the preferred outcome, assess damages according to the principles set out in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613).”
It was noted that there had been no previous Appeal Panel decision requiring a builder, under s 48O(1)(c)(i) or (ii) orders, to determine the scope of rectification work, either personally or with the assistance of builder-appointed engineers. ([53])
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| McDonald v Commissioner for Fair Trading [2018] NSWCATAP
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; S Higgins, Senior Member
Mr McDonald runs a tattoo parlour. At first instance, the Tribunal affirmed the decision of the Commissioner for Fair Trading, refusing his application for an “operator” licence under the Tattoo Parlours Act 2012 (NSW) (TP Act). This decision followed a determined by the Commissioner of Police that Mr McDonald was not a fit and proper person to be granted an operator licence and that to do so would be contrary to the public interest (TP Act, s 19(1)).
On appeal, Mr McDonald contended that the Tribunal had erred in finding that he was not a fit and proper person to hold an operator licence.
Held (dismissing the appeal): (i) the Tribunal made no error in finding that Mr McDonald was not a fit and proper person under the TP Act ([107]).
The case law as to how the “fit and proper person” test is to be applied to the TP Act is as follows ([74]):
(1) the purpose of the words “fit and proper” is to give a wide scope for judgment and for rejection (Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HC 28; (1955) 170 CLR 127, at 156-157);
(2) ““Fit” …is said to involve honesty, knowledge and ability. …each case must depend on its own facts” (Hughes and Vale);
(3) “The expression “fit and proper” person, standing alone, carries no precise meaning. It takes its meaning from its context…” (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 380);
(4) the question may be whether improper conduct has occurred, is likely to occur, or whether the general community can be confident it will not occur (Bond);
(5) character (as an indicator of likely future conduct) may be sufficient to ground a finding that person is not fit and proper (Bond);
(6) an applicant needs to demonstrate the requisite knowledge of the duties and responsibilities of the licence holder, as well as sufficient moral integrity and rectitude to be publicly accredited as holder of such a licence (Sobey v Commercial and Private Agents Board (1979) 22 SASR 70.
In summary, “…a person’s fitness and propriety must be considered in the context of the regulated activity (i.e. its purpose and objective) and the circumstances relevant to the person making the application (i.e. each case depends on its own facts).” ([77])
(ii) Factors other than a person’s criminal record may be relevant, including a person’s readiness, in future, to comply with their obligations under the Act ([77]):
“Given the broader object and purpose of the TP Act, a single failure to notify the [Commissioner for Fair Trading] of the details of a close associate, or changes in the details of a close associate may be sufficient to find that the person is not a fit and proper person to be the holder of an operator licence under that Act. It will depend on the circumstances. The same applies where there are multiple failures, as in this case.”
The effectiveness of the legislative scheme in achieving its overall objectives is largely dependent on whether those who are granted an operator licence can be trusted to comply with their obligations under the TP Act ([78]).
Accordingly, it was open to the Tribunal, on the evidence, to find that the appellant’s traffic record, combined with “his nonchalant or combative defence of it, does indeed point to a pattern of repetition that inspires little confidence in his readiness to comply in the future with regulatory legislation, including the TP Act.” ([80])
(iii) Any financial hardship or disadvantage is not relevant to the assessment of a person’s fitness and propriety: see Austin [2016] NSWCATAP 179, at [73] ([84]). Conversely, the Tribunal’s finding of possible breaches of the Australian Consumer Law was not an irrelevant factor ([97]).
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| Brett v Warhaftig [2018] NSWCATAP 167
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member
The appellant owns a unit in a strata building at Rose Bay; the respondents are the other lot owners and the Owners Corporation.
The appellant applied to the Tribunal for an order, under s 236 of the Strata Schemes Management Act 2015 (NSW), reallocating the unit lot entitlements, on the basis that the initial allocation was unreasonable. The application was determined on the papers and was dismissed.
The key issues on appeal were (i) the sufficiency of the appellant’s evidence; and (ii) the Tribunal’s obligations when determining an application on the papers, where both parties have consented to dispense with a hearing under s 50(2) of the NCAT Act.
Held (dismissing the appeal): (i) the Tribunal has no obligation to advise parties about the adequacy of their evidence ([37]). This was so despite the appellant’s (mistaken) belief that the Tribunal had indicated that his evidence was sufficient, on which basis he consented to his application being dealt with on the papers ([36]).
The Tribunal’s obligations are, in part, set out in s 38 of the NCAT Act. Section 38(5) provides the Tribunal is to (a) ensure the parties understand the nature of the proceedings; (b) if asked, explain any aspect of the Tribunal’s procedure or decision; and (c) ensure the parties have a reasonable opportunity to be heard or have their submissions considered.
Deficiencies in the appellant’s evidence could have been addressed by obtaining legal advice ([40]):
“In the present case, the appellant was able to obtain independent legal advice if he wished to do so and was afforded an opportunity to prepare and present whatever evidence he thought was relevant and necessary to prove his claim. The fact that he had not done so did not require the Tribunal, when making its decision, to give him a second chance.”
(ii) Having regard to the evidence provided by the parties, the Tribunal was correct to dismiss the application to reallocate the units ([50]):
“…the primary, but not only, consideration in resolving an application under s 236(1)(a) of the [Strata Schemes Management Act 2015 (NSW)] is the value of the respective lots at the time of the strata plan was registered. It is also clear from s 236(4) that the application for an order must be accompanied by “a certificate of valuation, at the relevant time of registration … , of each of the lots to which the application relates”.”
Sahade v The Owners – Strata Plan 62022 [2014] NSWCA 208, applied.
Crucial to this conclusion was that “the applicant provided no evidence of the value of each of the lots. The valuer’s certificate does not provide a valuation of the lots but simply provides a schedule which may have been based on some valuations: [Tribunal reasons] at [23]” ([45]).
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| Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue (No 2) [2018] NSWCATAP 178
Administrative and Equal Opportunity Division Decision of: M Harrowell, Principal Member; J Currie, Senior Member
This costs decision followed the dismissal of an appeal, regarding a decision of the respondent Commissioner not to de-group the appellant from a group of tyre companies. Its original decision having been confirmed, the respondent sought a costs order.
The only issue for determination was whether special circumstances existed, permitting the Appeal Panel to make an award for costs under s 60 of the NCAT Act.
Relevant to this enquiry was the appellant’s non-compliance, by the due date, with certain directions, and failure to reply to correspondence concerning the non-compliance. These failures obliged the respondent to take steps to relist the matter and put in place an adjusted timetable.
Held: (i) The appellant’s nonresponse to correspondence was out of the ordinary. As such, the respondent is entitled to recover its costs in relation to the additional directions hearing necessitated by that conduct ([23]). It was noted that ([22]):
“Where parties are legally represented, the Appeal Panel can reasonably expect the lawyers to work together, respond to correspondence, and make suitable arrangements where default occurs so as to facilitate the just, quick and cheap resolution of the real issues in dispute. That is not to excuse parties from their obligation to comply with the Tribunal’s directions, but rather to recognise that delay may occasionally occur in which case all parties should take steps and work cooperatively to ensure that the resolution of the proceedings is not unnecessarily delayed.”
(ii) Further, where a party is permitted to type the transcript themselves, a few inaccuracies will not be considered “out of the ordinary” ([20]):
“In this regard it was always open to [a party] to make any corrections to the transcript provided by [another party] without incurring the cost of having a formal transcript prepared.”
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| | | Clements v Murphy [2018] NSWCATAP 152
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; DAC Robertson, Senior MemberCatchwords: BUILDING AND CONSTRUCTION – home building – whether the preference for rectification of defective work by the responsible contractor arising from s48MA of the Home Building Act applies in relation to incomplete work WORDS AND PHRASES – “defective work” |
| Coomber v Butler [2018] NSWCATAP 153
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: AGRICULTURAL TENANCY – fixed term agreement – right to renew – failure to sign renewed lease – tenant remaining on possession after expiry of fixed term – holding over where no express agreement – inferred agreement – termination of periodic tenancy COLLATERAL AGREEMENT – oral agreement – witness preferred – contemporaneous document corroborating oral evidence |
| Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; R Perrignon, Senior MemberCatchwords: APPEAL – residential tenancies – social housing – termination order – termination for breach of residential tenancy agreement – relevant considerations – circumstances of the case – whether tribunal took into account relevant considerations – whether decision unreasonable – whether decision against the weight of evidence |
| Wilson v Dash (No 2) [2018] NSWCATAP 155
Consumer and Commercial Division - Home Building
Decision of: P Callaghan SC, Principal Member; D Goldstein, Senior MemberCatchwords: COSTS – gross sum cost order |
| Hundt v Kong [2018] NSWCATAP 156
Consumer and Commercial Division - Tenancy
Decision of: S Higgins, Senior Member; GK Burton SC, FCIArb, Senior MemberCatchwords: RESIDENTIAL TENANCY – continuing breach, complaint, attempted remediation – lodgement of claim within time – in the alternative, extension of time for lodgement of claim |
| Yoon v Matar [2018] NSWCATAP 157
Consumer and Commercial Division - Tenancy
Decision of: M Harrowell, Principal Member; D Goldstein, Senior MemberCatchwords: LEAVE TO APPEAL – residential proceedings – application to extend time to appeal – no satisfactory explanation of delay – appeal unlikely to succeed |
| Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEAL – Home Building Act – s 48O, extent of jurisdiction, nature and extent of order making power, “perform any specified work or service or obligation under Act or agreement” – breach of statutory warranties; breach of contract; discretion – order to perform any “specified act” |
| Zeait v Singh (No 2) [2018] NSWCATAP 159
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior MemberCatchwords: COSTS – application of r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – no question of principle |
| Pont v Connolly-Bishop [2018] NSWCATAP 160
Consumer and Commercial Division - Tenancy
Decision of: K Rosser, Principal Member; J Lucy, Senior MemberCatchwords: APPEAL – leave for representation – whether question of law established – leave to appeal – electricity charges |
| Patil v Goru [2018] NSWCATAP 161
Consumer and Commercial Division - Commercial
Decision of: A Bell SC, Senior Member; DAC Robertson, Senior MemberCatchwords: APPEAL – questions of fact – no issue of principle |
| Rekrut v Champion Homes Sales Pty Ltd [2018] NSWCATAP 162
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; S Higgins, Senior Member Catchwords: APPEAL – costs – costs order made by Tribunal after Appeal Panel has allowed appeal in part – whether costs order should be set aside |
| GPM Constructions Pty Limited v Baker (No 2) [2018] NSWCATAP 163
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior Member Catchwords: COSTS – application for indemnity costs – Calderbank letter – whether it was unreasonable to decline to accept offer |
| McDonald v Commissioner for Fair Trading [2018] NSWCATAP 164
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; S Higgins, Senior MemberCatchwords: APPEAL – appeal from a decision of the Tribunal to affirm a decision of first respondent to refuse appellant’s application for an operator licence to operate a carry on a body art tattooing business – application of fit and proper person test – no error of law – relevance of traffic offences – conclusions reasonably open to the Tribunal – no appealable error found |
| Tang v Grondin [2018] NSWCATAP 165
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; J Currie, Senior MemberCatchwords: APPEALS – question of law – proper construction of residential tenancy agreement |
| Rigoni v Tao [2018] NSWCATAP 166
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; S Higgins, Senior Member Catchwords: APPEALS – case proceeding on incorrect facts – fresh evidence on appeal – points and objections not taken below |
| Brett v Warhaftig [2018] NSNWCATAP 167
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member Catchwords: STRATA SCHEMES MANAGEMENT ACT 2015 – reallocation of unit entitlements – requirement for valuation of lots – insufficiency of evidence – opportunity to provide evidence – obligation of Tribunal to advise where evidence insufficient |
| B & M Mitchell Pty Ltd (in liquidation) v Mikell Investment Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 168
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; R Hamilton SC, Senior MemberCatchwords: Payment of monies held by Tribunal |
| Lucchese v McDonald (No 2) [2018] NSWCATAP 169
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEALS – costs – costs of the appeal – no question of principle |
| Ingate v Andrews [2018] NSWCATAP 170
Consumer and Commercial Division - Home Building
Decision of: Hennessy LCM, Deputy President; D Goldstein, Senior MemberCatchwords: COSTS – costs of internal appeal in proceedings in the Consumer and Commercial Division of NCAT – whether the amount claimed or in dispute is more than $30,000 – whether there are special circumstances warranting an award of costs |
| Lane Cove Council v The Owners - Strata Plan No 88649 [2018] NSWCATAP 171
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior MemberCatchwords: HOME BUILDING CLAIM – defects and statutory warranties – no evidence or no reasonable basis for conclusion – failure to provide proper reasons – whether rectification work was a necessary and reasonable course to adopt – failure to provide procedural fairness |
| Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; R Titterton, Principal MemberCatchwords: PRACTICE AND PROCEDURE – section 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – determination of appeal by way of rehearing CONSUMER LAW – whether expert report – whether sufficient to prove claim |
| El Howot v Moss [2018] NSWCATAP 173
Consumer and Commercial Division - Home Building
Decision of: RL Hamilton SC, Senior Member; S Thode, Senior MemberCatchwords: APPEAL – extension of time – inadequate explanation of delay – weak prospects and lack of substantive merit – additional considerations taken into account in applications for leave to appeal from decisions of the Consumer and Commercial Division COSTS – special circumstances |
| Ellis v The Owners - Strata Plan 80605 [2018] NSWCATAP 174
Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; D Goldstein, Senior MemberCatchwords: COSTS – appeal withdrawn – whether special circumstances for award of costs |
| Polymeris v Coopers Canteen Pty Limited (No 2) [2018] NSWCATAP 175
Consumer and Commercial Division - Commercial
Decision of: M Craig QC ADCJ, Principal Member; D Goldstein, Senior Member Catchwords: COSTS – whether the ‘amount in dispute’ exceeded $30,000.00, existence of ‘special circumstances’ |
| Camilleri v Eastlake [2018] NSWCATAP 176
Consumer and Commercial Division - Tenancy
Decision of: R Titterton, Principal Member; D Goldstein, Senior Member Catchwords: APPEALS – question of law – no question of principle – leave to appeal – no question of principle – whether the Tribunal’s decision was fair and equitable, whether evidence was ignored – whether no evidence before the Tribunal |
| Sproule v DP James Carpet Laying Pty Ltd [2018] NSWCATAP 177
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior MemberCatchwords: APPEALS – admission of fresh evidence – rules of evidence – weight of evidence – no question of principle |
| Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue (No 2) [2018] NSWCATAP 178
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J Currie, Senior MemberCatchwords: COSTS – special circumstances – directions hearing – failure to respond to correspondence concerning non-compliance with directions – amendment of grounds of appeal to confine issues for determination at final hearing |
| Woodward v DJ & TL Mellross Pty Ltd [2018] NSWCATAP 179
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; DAC Robertson, Senior MemberCatchwords: BUILDING AND CONSTRUCTION – Home Building – construction of contracts – precedence of documents – assessment of damages – whether rectification a reasonable course to adopt |
| DHV v DHW [2018] NSWCATAP 180
Guardianship Division
Decision of: Hennessy LCM, Deputy President; C Fougere, Principal Member; G Jamieson, Senior MemberCatchwords: APPEAL – where Tribunal refused application to make a financial management order – whether Tribunal erred in law by failing to observe the principles in s 4 of the Guardianship Act 1987 (NSW) – whether leave should be granted to appeal on questions other than questions of law |
| Phillips v KC Enterprises (NSW) Pty Ltd t/as Love Realty [2018] NSWCATAP 181
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; D Fairlie, Senior Member Catchwords: APPEAL – consumer claim – breach of Managing agency agreement – whether error in finding of no actual loss – whether error in finding failure to act with due care and skill not established |
| Singh v Fobubu Pty Ltd [2018] NSWCATAP 182
Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; D Charles, Senior Member Catchwords: APPEALS – extending time to lodge appeal – section 7(h) of the Residential Tenancies Act, 2010 – adjournment application |
| Beveridge v Style Tiles and Bathrooms Pty Ltd [2018] NSWCATAP 183
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; J Currie, Senior Member Catchwords: CONTRACT LAW – formation of contract – “refundable” deposit – uncertainty HOME BUILDING ACT – unenforceable contract – claim by homeowner – requirements of s 7AAA of Home Building Act, 1989 (NSW)
COSTS – special circumstances – original orders set aside due to non-appearance of respondent – subsequent rehearing – party partially successful |
| Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 184
Administrative & Equal Opportunity Division
Decision of: Wright J, President; Hennessy LCM, Deputy President; M Harrowell, Principal Member Catchwords: APPEALS – nature of internal appeal to the Appeal Panel under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – effectively an appeal by way of rehearing – points raised for first time on appeal – principles as to when Appeal Panel should allow points to be raised for first time on appeal – points allowed to be raised LIQUOR LICENSING – removal of licences under s 59 of the Liquor Act 2007 (NSW) – powers of Independent Liquor and Gaming Authority when dealing with removal application – Authority has power to determine a removal application in respect of a hotel licence by granting a packaged liquor licence – Authority has power to determine a removal application in respect of a hotel licence by imposing conditions on the hotel licence so that it operates only to authorise the retail sale of packaged liquor
LIQUOR LICENSING – s 45(3)(c) of the Liquor Act 2007 (NSW) – meaning of “the business or activity to which the proposed licence relates” – words refer to the business or activity which can be carried out at the proposed premises under the proposed licence including conditions – whether development consent in force for the business or activity to which the proposed licence relates – required consent in place for use of the premises under the proposed licence
LIQUOR LICENSING – s 15(1) of the Liquor Act 2007 (NSW) – proper construction of “the premises” in relation to the hotel primary purpose test – words refer to the area specifically identified as the proposed licensed premises in the application and as delineated by the Authority under s 94 – hotel primary purpose test satisfied in this case as the primary purpose of the business to be carried out on the proposed premises was at all times the sale of liquor by retail |
| Abdel-Messih v Wang [2018] NSWCATAP 185
Consumer and Commercial Division - Tenancy
Decision of: A Bell SC, Senior Member; DAC Robertson, Senior MemberCatchwords: COSTS – proceedings settled without determination, no special circumstances |
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