| | | | | | | NCAT Appeal Panel Decisions June 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 decisions were handed down during June 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Lucchese v McDonell [2018] NSWCATAP 120
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; K Ransome, Senior Member
The appellant property owners contracted with the respondent builders to build their house. Disputes arose, and the parties agreed to terminate the contract, with the owners to pay the builders for work done.
The owners disputed the invoice for $57,730.69, so the builders commenced proceedings seeking payment. They were awarded $57,440.81. Meanwhile, the owners brought proceedings seeking the costs of rectifying alleged defects in the building work. They were awarded $36,879.65.
The owners appealed from both decisions, claiming that the Tribunal erred in: (i) calculating the amount owed to the builders, (ii) failing to take into account the deposit, and (iii) disallowing the owners’ claim for labour.
Held: (allowing the appeal in part): (i) rights accrued under the contract were not divested or discharged by termination ([60]).
Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 340 ALR 193 at [79], applied.
In this case, the contract stipulated the amounts to be paid to the builders on completion of the various stages. These rights to payment had accrued, and remained in existence, at the time of termination. Accordingly, the Tribunal correctly calculated the amounts owing to the builders ([65]-[69]).
(ii) There was no legal basis entitling the builders to retain the deposit, and it was not money paid for work done ([73]). As such, failure to account for the deposit in calculating the amount due to the builders was “an injustice which is reasonably clear… so that it would be unjust to allow the finding to stand – see Collins v Urban [2014] NSWCATAP 17.” ([70])
(iii) The Tribunal correctly found that there was no evidence that the owners had done the work as claimed, nor that the rate per hour was justified ([92]).
Allowing for the deposit, and further costs for rectifying defects, the net result was that the builders should pay the owners $10,494.84 ([105]-[108]).
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| Westwell v Kitson [2018] NSWCATAP 121
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; G Sarginson, Senior Member
A landlord brought proceedings against her tenant, seeking termination of the lease, possession, and payment of rent and water arrears.
By consent, the Tribunal made the orders as sought, adding that the tenant pay rent arrears and a daily occupation fee up to the date of vacant possession.
The tenant appealed, alleging that the Member had erred in making orders by consent, and challenging the Member’s findings as to rent and other matters.
Held (dismissing the appeal): (i) the Member did not err in making the consent orders ([43]). The document signed by the parties provided sufficient basis to conclude that there was a residential tenancy agreement and thus power to make consent orders under the Residential Tenancies Act 2010 ([32]).
The Appeal Panel followed the principles for setting aside a consent order as outlined in McDonald v McDonald [2016] NSWCATAP 252 at [59] ([25]).
(ii) The consent orders were made to implement the parties’ agreement, and did not include findings as to rent or any of the other substantive issues in dispute. The challenge on the basis of those findings was not made out ([44]-[45]).
(iii) There was no basis upon which leave should be granted. The tenant was bound by the orders giving effect to her agreement with the landlord. The decision of the Member, and evidence on which it was based, does not alter that conclusion ([46]).
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| Transport for NSW & Ors v Robinson [2018] NSWCATAP 123
Administrative and Equal Opportunity Division
Decision of: Dr J Renwick SC, Senior Member; S Higgins, Senior Member
In 2015, reforms to NSW coastal management policy were considered by various NSW Government entities, including Roads and Maritime Services (RMS) and Transport for NSW.
Under the Government Information (Public Access) Act 2009 (GIPA Act), Mr Robinson applied to Transport for NSW and RMS for information about these reforms. The Tribunal remitted the matters to the agencies to conduct further searches and make supplementary decisions.
The grounds of appeal included that the Tribunal erred: (i) in its construction and application of cl 2(1)(e) of Sch 1 of the GIPA Act; and (ii) in applying the principles of waiver of legal professional privilege.
Held (allowing the appeal): (i) the Tribunal erred in construing cl 2(1)(e) of Sch 1 by superimposing a condition that, for the overriding public interest against disclosure of Cabinet information to apply, Cabinet must have actually deliberated upon a matter contained in the document ([16], [23]-[24]). Such an interpretation would undermine the purpose of the provision, namely to protect cabinet deliberative processes ([22]).
On a “plain reading”, the clause involves the following steps ([19]):
“1. there must be a document prepared either before or after Cabinet’s deliberation or decision on a matter;
2. it must reveal or tend to reveal a defined position; and
3. the defined position is one that a particular Minister has taken, is taking, or will take, is considering taking, or has been recommended to take on the matter in Cabinet.”
The standard of review for determining whether the information fell within cl 2(1)(e) of Sch 1 is found in s 106(1) ([26]). As the documents contained information related to draft Cabinet submissions, access was refused ([29]-[37]).
(ii) The Tribunal made “an error that is plain and readily apparent” by releasing documents, which it had found to be subject to both legal professional privilege (Evidence Act, s 118) and to an overriding public interest against disclosure (GIPA Act, s 14(1) and cl 5 of Sch 1) ([40]).
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| DHQ v DHR [2018] NSWCATAP 128
Guardianship Division
Decision of: A Britton, Principal Member; L Dive, Senior Member; A Lowe, General Member
The appellant appeals from a decision to review an order committing the management of his 91 year old sister’s estate to the NSW Trustee and Guardian.
His grounds of appeal were as follows:
i) The decision was ultra vires as the Tribunal was not properly constituted;
ii) The decision was legally unreasonable (per Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li));
iii) The Tribunal member was biased against him.
Held (dismissing the appeal): (i) cl 4(2) of Sch 6 to the NCAT Act permits the Tribunal to be constituted by a single member when exercising its powers of review ([31]). By contrast, when exercising its substantive functions under the Guardianship Act the Tribunal must be constituted by three members ([30]).
(ii) The decision was not “unreasonable in the sense that it lacked “an evident and intelligible justification”: Li at [76].” ([45]) In assessing whether it was in the subject person’s best interests to revoke the orders, the Appeal Panel noted the appellant’s “advanced age”, and failure to make any plans for the management of his sister’s estate in the event that he was no longer able to do so ([46]-[53]); as well as his opposition to his sister’s residence at an aged care facility, and hostility to its director – posing a risk that he would remove her or fail to pay her accommodation fees.
(iii) An allegation of actual bias “must be distinctly made, clearly proved and supported by cogent evidence.” ([55]) The appellant’s subjective belief that the decision was irrational and unreasonable was insufficient to prove bias ([58]).
It was noted that the Appeal Panel’s role “is limited to considering the decision under appeal”, and that the appellant could direct his criticisms of any decision of the NSW Trustee to the AEOD for a merits review ([66]).
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| Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135
Consumer and Commercial Division - Strata
Decision of: K Rosser, Principal Member; D Fairlie, Senior Member
The appellant and respondents are lot owners in a strata scheme. The costs order under appeal was made in favour of the respondents, after the Tribunal dismissed the appellant’s application seeking re-appointment of a compulsory strata manager.
The appeal turned, in part, on whether the Tribunal erred: (i) in finding special circumstances warranting a costs order; and in making a gross sum costs order.
Held (allowing the appeal): (i) the general rule on costs in the Tribunal is that parties pay their own costs unless special circumstances are established (NCAT Act, s 60(1) and (2)) ([35]). “Special circumstances” need only be ‘out of the ordinary’; they do not have to be ‘exceptional’ ([37]).
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60], applied.
The Tribunal’s findings of special circumstances were overturned on appeal (at [48], [55] and [64]), as they involved an incorrect application of relevant legal principles and constituted an error, in the House v The King sense.
In doing so, finding that a claim is “not proved on the balance of probabilities” was distinguished from finding that a claim is “not tenable in fact or law” ([44]):
“For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel [Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125] at 130.”
(ii) The Tribunal’s discretion miscarried, both in finding special circumstances and in making a gross sum costs order ([78]). At [68]-[76], the Appeal Panel outlined the common law rules for making a gross sum costs order, noting the summary in Hamod v State of New South Wales (No 13) [2009] NSWSC 756 at [9].
It was noted that “[r]eiteration of the [NCAT Act’s] guiding principle is not a substitute for making findings of fact based on evidence. Nor is it a substitute for applying correct legal principles to the facts as found.” ([75])
(iii) In the absence of special circumstances, the “proper exercise of the discretion” was to order the parties to pay their own costs ([96]).
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| Rodny v Stricke [2018] NSWCATAP 136
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member
Under the Strata Schemes Management Act 2015 (NSW) (SSMA), the appellant lot owners sought orders against the respondents, comprising the Owners Corporation and committee members.
Both parties sought leave to be legally represented, pursuant to s 45 of the NCAT Act; the appellants seeking to appoint Mr David Le Page and his firm, and the respondents, Clyde & Co. Each objected to the other’s proposed lawyers, alleging conflict of interest – Mr Le Page had previously acted for the Owners Corporation, and Clyde & Co were the lawyers for the insurers of the Owners Corporation.
The Tribunal granted leave to both parties to be legally represented: the respondents by Clyde & Co, and the appellants by any lawyer other than Mr Le Page or his firm.
On appeal, the principal issue was the condition restraining a particular legal practitioner or firm from representing a party.
The principles for granting leave to appeal an interlocutory decision were established in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54, at [35] ([75]).
Held (dismissing the appeal): (i) the condition that the appellants be represented by a lawyer other than Mr Le Page was upheld. Although “any information Mr Le Page possessed may no longer be confidential” ([138]), nonetheless “[a] fair-minded observer would conclude that it is in the interests of … justice, including the appearance of justice, to restrain the practitioner from ‘switching sides’.” ([139])
Kallinicos & anor v Hunt & ors (2005) 64 NSWLR 561; NSWSC 1181 and Cleveland Investments Global Ltd v Evans [2010] NSWSC 567, applied.
(ii) The respondents were granted leave to be represented, provided the Owners Corporation and committee members were separately represented, unless approved in general meeting ([149]-[150] and [154]): “In this way, the Owners Corporation in general meeting can determine whether there is any relevant divergence of interest that warrants the extra cost incurred by the appointment of separate lawyers.” ([150])
This conclusion had regard to the present dispute’s “long history which is indicative of particular Lot owners being at “loggerheads”” ([149]), and to the fact that: “[w]here parties may have divergent interests, unless there is informed consent, there is clearly a need for separate representation …” ([152]).
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| Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior Member
A consumer (the respondent) purchased a fish tank, which he subsequently found to be faulty. He brought proceedings against the retailer and manufacturer (the appellant). The Tribunal ordered the manufacturer to pay the consumer $900.00, as compensation for breaching the consumer guarantee found in s 54 of the ACL.
The grounds of appeal included that: the claim was out of time, noting the 3-year warranty period; it was not proven that the appellant was the manufacturer; and the Tribunal erred in rejecting submissions that the tank was incorrectly used or installed, in dismissing the claim against the retailer, and in awarding too high a sum.
Held (dismissing the appeal): (i) the application was commenced in time. In the case of failure by a supplier, or manufacturer ([32]), to comply with a consumer guarantee under the ACL, the cause of action first accrues “when the alleged damage became known or could have become known with reasonable diligence” – Sacks v Hammoud [2016] NSWCATAP 225 at [59] ([31]).
(ii) The appellant was the manufacturer of the fish tank, as, “[o]bjectively, there was separate evidence from each of the consumer and the retailer identifying the appellant as the manufacturer …” ([42]).
(iii) Absent any evidence from the appellant, the Tribunal did not err in rejecting his submissions that the tank was wrongly installed or unsuitable for use outdoors ([47]).
(iv) The fault “was a manufacturing problem, not a problem arising from the conduct of the retailer”, accordingly the retailer did not bear responsibility for the defects and should not be made to contribute to any award of damages ([51]-[52]).
(v) Breach required replacing the tank, noting the observations in Commonwealth of Australia v Amann Aviation Pty Ltd 104 ALR 1 at [11]-[12], “namely that some degree of estimation is required and the Tribunal must do the best it can.” ([54])
The appellant’s submission that the result of this order was that he was made responsible for the margin added to the wholesale price by the retailer, was found to be wrong for two reasons: ([55]-[58])
“Firstly, the loss to be assessed is that suffered by the consumer. … this involves assessing what is the amount which the consumer incurred to replace the fish tank. As is clear from the reasons, this is precisely what the Tribunal determined in awarding $900.00.
Secondly, the approach advocated by the appellant presupposes that the retailer should be deprived of its margin in circumstances where it sold a product which was defective. … As stated above, the responsibility for the defect rests solely with the appellant.”
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| CEU v University of Technology, Sydney [2018] NSWCATAD 185
Administrative and Equal Opportunity Division
Decision of: Hennessy, LCM Deputy President
CEU was a nursing student at the University of Technology, Sydney (UTS). After deciding that she was unsuited for further clinical placements, UTS discontinued her enrolment.
Under s 45(4) of the NCAT Act, UTS applied for a guardian ad litem (GAL) to be appointed to represent CEU in four proceedings. In response, CEU applied for a GAL to be appointed to act for UTS.
Held: (i) Based on her behaviour in conducting proceedings, the Tribunal decided to appoint a GAL for CEU, but declined to do so for UTS ([13]):
“The power to appoint a Guardian is primarily protective of the party concerned. My view is that while there is no statutory limitation on the circumstances in which the Tribunal may appoint a guardian ad litem, it may do so at least where it is satisfied that the party is a “vulnerable person” as defined in s 37(3) of the NCAT [Rules]. As I have found that CEU comes within this definition, it is not necessary for me to determine the precise scope of the discretion in s 45(4)(a) of the NCAT Act.”
(ii) CEU was found to have a disability rendering her incapable of representing herself in the proceedings ([34]). It was not necessary to make a definitive finding about the precise nature of that disability ([34]):
“It is sufficient if the person is “intellectually, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.” …”
Finding that it was appropriate to exercise the discretion to appoint a GAL ([34]), the Tribunal took into account: CEU’s inability to “confine her written evidence and submissions to the issues in dispute” or “to decide whether or not it is in her best interests to settle proceedings”, and her repeated filing of “excessively burdensome written material”, leading to costs orders being made against her ([35]-[39]).
(iii) The GAL must always act in CEU’s best interests, but does not have to act on her instructions ([40]-[41]). On the duties of the Tribunal and other parties, it was noted:
“…If the parties agree to settle the case, the Tribunal must take into account the interests of CEU before approving any settlement: NCAT Regulation, cl 37(1).
When a GAL is appointed the other parties and their lawyers must communicate directly with the GAL. They must give all documents to the GAL, or their lawyer if they have one, as if the GAL is the party. The GAL is able to instruct a lawyer on a pro bono basis if that person decides to do so.”
(iv) CEU’s application for a GAL to be appointed for UTS was misconceived. As UTS is a statutory corporation, not a natural person, there was no basis for finding it to be incapable of representing itself in proceedings. ([43])
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| | | Van Dyk v Gathercole (ATF The Gathercole Family Trust) [2018] NSWCATAP 114
Consumer and Commercial Division - General
Decision of: S Westgarth, Deputy President; R Hamilton SC, Senior Member Catchwords: ERROR OF LAW – inadequate reasons – determination of application by Appeal Panel |
| Singh v Mohibi t/as Spotless Finishes Painting and Decorating [2018] NSWCATAP 115
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Perrignon, Senior Member Catchwords: PROCEDURAL FAIRNESS – absence of relevant evidence to support adjournment application – adequacy of reasons for conclusions RESIDENTIAL BUILDING WORK – unenforceable contract – requirements for written contract – licence number – statutory warranties – quantum meruit as alternative claim |
| Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Fairlie, Senior Member Catchwords: APPEAL – costs – gross sum costs orders |
| Atcheson v Knight [2018] NSWCATAP 117
Consumer and Commercial Division - Tenancy
Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: APPEAL – Residential Tenancies – assessment of rent arrears – no error of law established – assessment of damages for repairs to property at end of tenancy – no error of law established – grounds for leave to appeal not established |
| Gregorio v Cheadle [2018] NSWCATAP 118
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; F Corsaro SC, Senior MemberCatchwords: HOME BUILDING ACT – statutory construction – s 18E proceedings for breach of statutory warranty – limitation period for bringing claim by a successor in title against owner builder – effect of amendment on limitation period – nature of right of successor in title under section 18C of the Home Building Act to bring proceedings for breach of statutory warranties |
| GPM Constructions Pty Limited v Baker [2018] NSWCATAP 119
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior Member Catchwords: CONTRACT – whether building contract on foot – whether owner lost entitlement to damages for defective building work in such a case – whether the owner had failed to act reasonably or failed to mitigate her loss by not requesting the builder to return to rectify defects HOME BUILDING ACT – s 48MA, preferred outcome principle, relevant considerations, what order is appropriate
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
DISCRETION – order-making power under s 48O of Home Building Act – application of preferred outcome principle
LEAVE TO APPEAL – findings of defects in building work |
| Lucchese v McDonell [2018] NSWCATAP 120
Consumer and Commercial Division - Home Building
Decision of: G Curtin SC, Senior Member; K Ransome, Senior Member Catchwords: APPEALS – building engineering and related contracts – general contractual principles – termination – accrued rights – remuneration – deposit – cost of rectification – proof of claim – departure from the rules of evidence CIVIL PROCEDURE – inferior tribunal – Civil and Administrative Tribunal (NSW) – multiple appeals – practice and procedure – decisions and orders – set-off of amounts found to be owed in separate appeals |
| Westwell v Kitson [2018] NSWCATAP 121
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; G Sarginson, Senior Member Catchwords: APPEAL – consent orders – whether power to make orders – whether basis on which consent orders should be set aside |
| Chandra v RB & RK Real Estate t/as Starr Partners Fairfield [2018] NSWCATAP 122
Consumer and Commercial Division - General
Decision of: A P Coleman SC, Senior Member; S Higgins, Senior MemberCatchwords: APPEAL – Tribunal held applicant had failed to prove loss – whether Tribunal erred in so concluding – no question of principle |
| Transport for NSW & Ors v Robinson [2018] NSWCATAP 123
Administrative and Equal Opportunity Division
Decision of: Dr J Renwick SC, Senior Member; S Higgins, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL PANEL – GOVERNMENT INFORMATION – cabinet information – relevant test – whether reasonable grounds for claim – legal professional privilege – whether privileged documents have lost privilege by waiver |
| Bavin v Parklea Operations Pty Ltd Trading As Gateway Lifestyle Stanhope Gardens [2018] NSWCATAP 124
Consumer and Commercial Division - Residential Communities
Decision of: L Pearson, Principal Member; G Sarginson, Senior Member Catchwords: APPEAL – residential parks – electricity charges – method of charging for resident’s consumption |
| Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 125
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member Catchwords: COSTS – application by unsuccessful respondent based on issues |
| Liang v Wincrest Group Pty Ltd [2018] NSWCATAP 126
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – Home building – whether denial of procedural fairness – whether apprehended bias – adequacy of reasons – whether error of law established – whether leave to appeal should be granted |
| Singh v Fobupu Pty Ltd [2018] NSWCATAP 127
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal MemberCatchwords: COSTS – Civil and Administrative Tribunal Rules, 2014 – r 38 and r 38A – discretion to award – application for leave to appeal dismissed. |
| DHQ v DHR [2018] NSWCATAP 128
Guardianship Division
Decision of: A Britton, Principal Member; L Dive, Senior Member; A Lowe, General MemberCatchwords: HUMAN RIGHTS – whether the Tribunal in reviewing a financial management order was properly constituted in accordance with cl 4 of Sch 6 to the Civil & Administrative Tribunal Act 2013 (NSW) PROCEDURAL FAIRNESS – bias – actual bias
HUMAN RIGHTS – whether decision was unreasonable – whether decision lacked an intelligible justification |
| AJ Gouros Investments Pty Ltd trading as Adelaide Concrete Polishing & Grinding Pty Ltd v Pongraz [2018] NSWCATAP 129
Consumer and Commercial Division - Home Building
Decision of: Mr M Harrowell, Principal Member; F Corsaro SC, Senior MemberCatchwords: HOME BUILDING ACT – s 18D(1A) – residential building work – identity of the parties to contract – right of owners to claim for breach of statutory warranties as “non-contracting owners” against direct trade contractor or subcontractor to residential builder |
| Abdel-Messih v Wang [2018] NSWCATAP 130
Consumer and Commercial Division - Tenancy
Decision of: M Craig QC, ADCJ, Principal Member; D Goldstein, Senior MemberCatchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal – appeal – question of law – identification of error – challenge to findings of fact based on evidence newly introduced – evidence reasonably available at hearing below – no substantial miscarriage of justice |
| Gan v Shop 3,228-230 Hanvaylee Parade Kensington Pty Ltd (No 2) [2018] NSWCATAP 131
Consumer and Commercial Division - Commercial
Decision of: P Durack, Senior Member; J McAteer, Senior MemberCatchwords: APPEAL – costs to follow event |
| ZGW v ZGY [2018] NSWCATAP 132
Guardianship Division
Decision of: S Higgins, Senior Member; K Ransome, Senior Member; P Foreman, General MemberCatchwords: GUARDIANSHIP – appeal from decision to make a guardianship order and appointing the Public Guardian as the guardian of the protected person – appeal by youngest son of the protected person – appeal dismissed |
| Abed v Cosgrove t/as Alison Arts; Cosgrove v Abed (No 2) [2018] NSWCATAP 133
Consumer and Commercial Division - General
Decision of: L Robberds QC, Senior Member; G Sarginson, Senior MemberCatchwords: COSTS – special circumstances – unsuccessful cross appeal – special circumstances established – applicable principles |
| Harley Kismet Pty Ltd t/as Kismet Riverside Lodge v Hood [2018] NSWCATAP 134
Consumer and Commercial Division - Residential Communities
Decision of: R Titterton, Principal Member; L Wilson, Senior Member |
| Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal MemberCatchwords: APPEAL – costs – gross sum costs orders |
| Rodny v Stricke [2018] NSWCATAP 136
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal MemberCatchwords: PRACTICE AND PROCEDURE – representation – s 45 of the Civil and Administrative Tribunal Act 2013 – legal representation – condition preventing particular lawyer – applicable principles in granting leave and imposing conditions INTERLOCUTORY DECISION – leave to appeal |
| Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137
Consumer and Commercial Division - Motor Vehicle
Decision of: R Titterton, Principal Member; J Kearney, Senior MemberCatchwords: APPEALS – leave to appeal – standard of proof – no question of principle |
| Mison v Bennett Property (NSW) Pty Ltd [2018] NSWCATAP 138
Consumer and Commercial Division - Commercial
Decision of: K Rosser, Principal Member; L Wilson, Senior MemberCatchwords: APPEAL – costs – r 38 – r 38A – indemnity costs |
| Tendek v Mawell Pty Ltd [2018] NSWCATAP 139
Consumer and Commercial Division - General
Decision of: A Bell SC, Senior Member; DAC Robertson, Senior MemberCatchwords: APPEAL – questions of fact – no issue of principle |
| Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; Dr R Dubler SC, Senior MemberCatchwords: CONSUMER CLAIM – limitation period for bringing claim – consumer guarantees – lack of durability – manufacturing defect – liability of retailer – s 79P – orders where more than one respondent – assessment of loss of consumer |
| Horvath v Heath [2018] NSWCATAP 141
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Fairlie, Senior MemberCatchwords: APPEAL – failure to appear at Tribunal hearing – whether denial of procedural fairness – whether leave ground established – whether leave to appeal should be granted |
| Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra [2018] NSWCATAP 142
Administrative and Equal Opportunity Division
Decision of: O’Connor ADCJ, Deputy President; K Ransome, Senior Member; Wright J, President K Ransome, Senior Member (after reconstitution on 9 April 2018) Catchwords: APPEAL – denial of procedural fairness – incorrect principle of law – relevant considerations – bias – costs |
| Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NSWCATAP 143
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: PROCEDURAL FAIRNESS – opportunity to cross examine – oral quotation – dispute regarding what was said – subsequent conduct of one party consistent with particular conversation – chance to challenge evidence explaining error in invoicing |
| Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: GOVERNMENT INFORMATION – where agency decided not to determine an application for a discount to a processing charge until it was ready to make a decision on access to the information – whether that ‘decision’ was ‘a decision to refuse a reduction in a processing charge’ under s 80(k) of the Government Information (Public Access) Act 2009 – whether decision was “a decision to refuse to deal with an access application” under s 80(c) – NCAT’s administrative review jurisdiction – appeal from obiter dicta – advisory opinions |
| Svanda v Commissioner of Police, NSW Police Force [2018] NSWCATAP 145
Administrative and Equal Opportunity Division
Decision of: Hennessy LCM, Deputy President; J Currie, Senior MemberCatchwords: APPEAL – access to government information – role of Tribunal when reviewing an administratively reviewable decision – whether the Tribunal is reviewing a decision on the basis of the factual material before the administrator or on the basis of the factual material before the Tribunal – whether agency is obliged to give the Tribunal a copy of all the information to which the applicant has been given access |
| Kaye v Health Care Complaints Commission [2018] NSWCATAP 146
Occupational Division
Decision of: Hennessy LCM, Deputy President; J Kearney, Senior MemberCatchwords: APPEAL – question of law – whether the Tribunal exercised its discretion in a manner which was so unreasonable that the decision should be set aside – whether Tribunal breached the rules of procedural fairness |
| Cessnock Tyres Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAP 147
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member; J Currie, Senior MemberCatchwords: PAYROLL TAX – s 79 Payroll Tax Act, 2007 – order for de-grouping – independence |
| Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos (No 2) [2018] NSWCATAP 148
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; R Titterton, Principal MemberCatchwords: PRACTICE AND PROCEDURE – costs – where appeal and cross-appeal – where both appeal and cross appeal allowed in part |
| ZIN v ZIO [2018] NSWCATAP 149
Guardianship Division
Decision of: Hennessy LCM, Deputy President; J Kearney, Senior Member; L Stewart, General MemberCatchwords: APPEAL – guardianship and financial management orders – no question of law identified |
| J Evers Pty Ltd t/as The Plumbing and Electrical Doctor v Rolt [2018] NSWCATAP 150
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; D Fairlie, Senior MemberCatchwords: APPEAL – residential building work – whether error of law – whether leave to appeal should be granted |
| Goodfellow v Gilchrist [2018] NSWCATAP 151
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; K Ransome, Senior MemberCatchwords: APPEAL – application to set aside decision – whether error of law |
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