| | | | | | | NCAT Appeal Decisions Digest November 2017 Decisions
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| | The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following decisions were handed down during the month of November 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| Lisle v Price [2017] NSWCATAP 208
Consumer and Commercial Division - Motor Vehicles
Decision of: K O'Connor AM, ADCJ, Deputy President Appeals; G Sarginson, Senior Member
Background: A motor vehicle owner contracted with an auto repairer to upgrade and modify his 4WD for an estimated cost of between $6,000 and $10,000. The owner left his vehicle with the repairer for one year and was told that some of the modifications he requested could not be done. After some negotiation, the repairer accepted $15,000 for the work that he had done, but did not waive any claim for defective or incomplete work in making that payment. The owner took his vehicle to Kingsdene Automotive, Carlingford for an assessment of the work that needed to be done to rectify various problems with the vehicle. Kingsdene agreed to perform some of the rectification works and referred the owner to NAS Automotive to deal with additional problems.
The owner applied to the Tribunal for an award of $15,000 compensation against the repairer for his failure to exercise due care and skill under s 60 of the Australian Consumer Law (New South Wales).
The Tribunal at first instance awarded $6,950 to the owner, after taking into account reports prepared by Kingsdene and NAS Automotive.
The repairer appealed, contending (among other things) that the Tribunal had denied him procedural fairness in accepting the owner’s reports, in circumstances where those reports did not comply with NCAT Procedural Direction 3 - Expert Witnesses.
Relevantly, cll 3 and 4 of PD 3 provide that:
“3. The Tribunal may excuse an expert witness or any other person from complying with this Procedural Directions before or after the time for compliance.
4. Nothing in this Procedural Direction prevents the Tribunal from giving any directions concerning expert witnesses or expert evidence that the Tribunal considers appropriate in any particular proceedings before the Tribunal.”
Held: (dismissing the appeal): (i) It was open to the Tribunal to rely on the reports as they were from members of the motor trade, who on the face of the material, and by reference to the contents of the reports and other material, appeared to competent to make those reports. ([40])
(ii) In proceedings where the rules of evidence do not apply, the Tribunal is still required to determine what weight it should give to the material before it. ([41])
Khan v Kang [2014] NSWCATAP 48 at [49]-[52], applied.
(iii) Although the Tribunal did not expressly state why it had excused the owner from complying with PD 3, strict compliance with PD 3 in cases of the present kind would often be oppressive and disproportionate to the nature of the claim and the nature of the dispute. Furthermore, strict compliance with PD 3 in such cases would be contrary to ss 3(d) and 36(4) of the NCAT Act. ([50]-[51])
[Note: NCAT Procedural Direction 3 - Expert Witnesses is currently under revision. The President intends to issue a revised Procedural Direction in the near future.] |
| Bradshaw v Complete Coating Commercial Pty Ltd t/as CCC Civil [2017] NSWCATAP 209
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; F Corsaro SC, Senior Member
Background: Two property owners contracted with a builder to construct a bitumen-sealed pavement over their driveway for the sum of $30,000. The owners, who were self-represented, brought proceedings against the builder for defective work, seeking $25,000 in compensation for money paid less $5,000 for non-defective work. The builder claimed an alleged outstanding payment for work carried out on a quantum meruit basis against the owners.
The Tribunal at first instance awarded $11,322 to the owners, being the amount owed for the builder’s defective work less the builder’s quantum meruit entitlement.
The owners appealed, contending (among other things) that the Tribunal erred in its approach to assessing the builder’s quantum meruit claim.
Held: (allowing the appeal, remitting the matter back to the Consumer and Commercial Division): (i) In cases involving self-represented litigants who cannot clearly articulate grounds of appeal, nor distinguish between errors of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to properly identify and characterise the grounds of appeal being advanced. ([18])
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12], applied.
(ii) For the builder to succeed on a quantum meruit claim, it must have satisfied the Tribunal that:
(1) it had enriched the owners;
(2) the benefit that the owners received was at the builder’s expense; and
(3) that it was ‘unjust’ in the circumstances to allow the owners to retain the benefit without paying for it.
([29])
(iii) The Tribunal below was obliged to assess the value of the builder’s work to the owners. The Tribunal’s approach to the valuation of a quantum meruit claim will depend on the circumstances and context in which the claim arises. The valuation may be made by reference to the builders’ costs of materials, goods and profit. ([30], [36], [37])
Sopov v Kane Constructions [2009] VSCA 216, considered.
Council of the City of Sydney v Woodward [2000] NSWCA 201 at [12], followed.
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 263, followed.
In the present case, the Tribunal failed to inquire as to the cost of the work performed by the builder. It assumed that the agreed contract price reflected the fair market value without considering whether this was an appropriate assumption to make ([40]). |
| White v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 216
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; J Lucy, Senior Member
Background: A home owner contracted with a builder to construct a pool for the sum of $91,855. The owner brought proceedings against the builder, seeking orders for $47,295.63 for repair and rectification costs related to the construction of the pool. The owner relied on three expert reports, none of which complied with NCAT Procedural Direction 3 – Expert Witnesses. The builder relied on an expert report which complied with PD3. None of the owner’s witnesses were available for cross examination, as had been requested by the builder. The builder’s expert was available for cross examination at the hearing, however the owner’s representative chose not to cross examine him on his evidence. The Tribunal at first instance preferred the evidence of the builder. The Tribunal ordered the builder to pay $726 to the owner in relation to one item and, having regard to s 48MA of the Home Building Act 1989 (NSW), ordered that the builder return to the site and remedy a defect in relation to a second item. The Tribunal dismissed all the owner’s other claims.
The owner appealed contending (among other things) that: (i) the Tribunal had denied her procedural fairness when it failed to explain to her that it would not accept her experts’ evidence because they were not present, and when it declined to offer her an adjournment so that she could produce her expert witnesses; and (ii) erred in accepting the builder’s expert report on the basis that the builder’s expert lacked the relevant qualifications to give an opinion on the subject matter of the report.
Held: (dismissing the appeal) (i) In some circumstances, the Tribunal's obligation to accord procedural fairness may require it to take the initiative to adjourn where a party has not requested an adjournment.
Sullivan v Department of Transport (1978) 1 ALD 383; (1978) 20 ALR 323 at 343, applied.
Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 121 ALD 514, applied.
AQK v Commissioner of Police, NSW Police Force [2016] NSWCATAD 223 at [10], applied.
In the present circumstances, it was not a denial of procedural fairness for the Tribunal to fail to take the initiative to adjourn the proceedings as it was not the Tribunal’s duty to give advice to the owner or her husband, who was representing her in the proceedings. ([36])
Bauskis v Liew [2013] NSWCA 297 at [69], applied.
(ii) An expert witness is required to include in their report “the expert’s qualifications as an expert on the issue the subject of the report": PD3, cl 16(a)).
It is not merely the expert’s qualifications which are relevant, it is also their experience. For the purposes of PD3, an expert is defined as “[a] person who has specialised knowledge based on the person’s training, study or experience and who give[s] evidence of an opinion based wholly or substantially on that knowledge”: PD3, cl 6.
The Tribunal did not make an error in preferring the builder’s expert evidence to the evidence of the owner’s experts. The qualifications and experience of the builder’s expert were relevant to the weight to be given to his evidence, and to his expertise. ([45]). |
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| | | Boscolo v NSW Land and Housing Corporation [2017] NSWCATAP 210
Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Principal MemberCatchwords: TERMINATION OF TENANCY – social housing tenancy agreement – tenant in prison – failure to pay rent – s 154E of the Residential Tenancies Act 2010 |
| Matterson v Sunrise Pools Australia Pty Ltd [2017] NSWCATAP 211
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; D Charles, Senior Member Catchwords: APPEAL – home building contract-new evidence from tests about defects carried out after the hearing – tests damaging to works - whether new evidence reasonably available – adequacy of reasons as to one issue – lack of proof of defects – construction of the contract concerning the height of the spa |
| Heard McEwan Pty Ltd v G Zanetti Pty Ltd [2017] NSWCATAP 213
Consumer and Commercial Division - Retail Leases
Decision of: A P Coleman SC, Senior Member; L Wilson, Senior MemberCatchwords: RETAIL LEASES – appointment of specialist retail valuer to determine market rent – construction of Lease |
| Abdel-Messih v Azzi [2017] NSWCATAP 214
Consumer and Commercial Division - Tenancy
Decision of: G K Burton SC, Senior Member; T Simon, Senior MemberCatchwords: RESIDENTIAL TENANCY – breach – sub-lease – termination – stay of possession |
| Azzi v Phan [2017] NSWCATAP 215
Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; D Goldstein, Senior MemberCatchwords: DISMISSAL OF APPEAL – withdrawal of appeal – costs – no question of principle |
| Thacker v Bonham [2017] NSWCATAP 217
Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; D Goldstein, Senior Member Catchwords: HOME BUILDING – error in evidence before primary member – discretion on remedy – works order |
| Bui v DB Homes Australia Pty Ltd [2017] NSWCATAP 218
Consumer and Commercial Division - Home Building
Decision of: R Seiden SC, Principal Member; J Currie, Senior MemberCatchwords: APPEAL – Civil and Administrative Tribunal (NSW) – whether question of law – whether leave should be granted on a question of fact – Extension of time – leave to appeal - self-represented litigants – leave denied DAMAGES – Assessment of damages – imprecise calculation of quantum of damages – damage not in contemplation of the parties EVIDENCE – Whether additional evidence was ‘new – relevance of evidence to matter on Appeal. |
| Felcher v The Owners – Strata Plan No 2738 [2017] NSWCATAP 219
Consumer and Commercial Division - Strata
Decision of: R C Titterton, Principal Member; J McAteer, Senior Member Catchwords: STRATA SCHEMES MANAGEMENT ACT – appeal from decision of the Tribunal – Leave to Appeal – no question of principle |
| DGM v NSW Trustee and Guardian [2017] NSWCATAP 220
Guardianship Division
Decision of: M Schyvens, Deputy President; M Harrowell, Principal Member; Prof G Walker, Senior MemberCatchwords: APPEALS – right of appeal from decision of Mental Health Review Tribunal (MHRT) – whether an order can be made by MHRT under s 88 of NSW Trustee and Guardian Act, 2009 to revoke management order originally made under Protected Estates Act 1983 – whether the Civil and Administrative Tribunal of New South Wales has jurisdiction to determine an appeal from a decision of the MHRT to refuse to revoke a management order REASONS FOR DECISION – adequacy of reasons – finding of no evidence – insufficient explanation for rejecting evidence LEAVE TO APPEAL – principles applicable to grant of leave – findings of fact contrary to evidence REVOCATION OF MANAGEMENT ORDER – s 88 of the NSW Trustee and Guardian Act 2009 – different requirements for revoking order to those applicable in making original order – best interest of protected person – relevance of principles in s 39 of the NSW Trustee and Guardian Act 2009 |
| SCC (Sam Construction Company) Pty Ltd v Wingate [2017] NSWCATAP
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy PresidentCatchwords: COSTS – special circumstances – s 60 of the NCAT Act – indemnity costs |
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