| | | | | NCAT Appeal Decisions Digest November/December 2019 Decisions
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| | The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down between 6 November and 11 December 2019. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
- Zheng v Kim [2019] NSWCATAP 285
- Shaw v Hartman [2019] NSWCATAP 290
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| Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
Administrative and Equal Opportunity Division
Hennessy ADCJ, Deputy President; G Walker, Senior Member
This was an appeal from a summary dismissal of an application to the Tribunal under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). Mr Zonnevylle had sought information from the Minister for Education and Early Childhood (the Minister) for access to certain information. In his request, Mr Zonnevylle made statements alleging that public officers, “possibly including the Minister”, had been complicit in maladministration, serious misconduct, and “possible unlawful/criminal offences”, “disadvantaging state schools” ([19]).
The Minister did not make a determination on Mr Zonnevylle’s application within the time period required under s 57 of the GIPA Act. This gave Mr Zonnevylle the right to apply to the Tribunal for an administrative review of the deemed decision, which he did on 31 October 2019 ([4]).
Five days after Mr Zonnevylle lodged his application in the Tribunal, he received a letter from the Minister stating that he had considered the application for access and made a determination that (most of) the information requested was “not held” by the Minister’s office ([5]).
Following this determination, the Tribunal handed down two interlocutory decisions – the first dismissing part of Mr Zonnevylle’s application for lack of jurisdiction, and the second, on application by the Minister, summarily dismissing the whole proceedings as “vexatious” because they were predominantly brought or maintained for a collateral purpose. Mr Zonnevylle appeals the second interlocutory decision ([6]-[8]).
In the grounds of appeal initially articulated, Mr Zonnevylle failed to identify any question of law ([32]). The ground of appeal primarily considered by the Appeal Panel was formulated by the Appeal Panel itself, on the basis that the Tribunal’s duty is to ensure that a self-represented party is not disadvantaged. As the Appeal Panel noted, that duty may involve suggesting a question of law which the self-represented party has not articulated ([32]).
That ground, framed as a “question” to be determined in the appeal, was as follows ([34]):
“[W]hether, to come within the principle of collateral purpose, the purpose of bringing the proceedings must be to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers: Williams v Spautz [1992] HCA 34; 174 CLR 509 at [36]. Even if Mr Zonnevylle’s purpose was to “to attempt to re-litigate allegations of misconduct, illegality and lack of good faith”, was that an advantage of the kind contemplated by the collateral purpose principle?” (emphasis added)
This question was adopted by Mr Zonnevylle as one on which he relied on appeal ([35]).
The Appeal Panel granted leave to appeal from an interlocutory decision and allowed the appeal. Points addressed by the Appeal Panel include the following:
Leave to appeal
(i) The Appeal Panel granted Mr Zonnevylle leave to appeal from the summary dismissal on the basis that ([40]-[42]):
a. although the decision below was interlocutory, it had the effect of finally determining the rights of the parties;
b. the appeal raised a question of public importance, being the “factual circumstances in which open access to justice may be limited by the application of the principle of collateral purpose”; and
c. the Tribunal’s decision disclosed an error of law.
Error of law
(ii) The Appeal Panel noted that, on its “read” of the Tribunal’s decision, Mr Zonnevylle’s application was dismissed because it was being maintained, as distinct from commenced, for a collateral purpose ([10]).
(iii) It accepted the Minister’s submissions that proceedings that are commenced for a proper, or non-collateral purpose, and subsequently maintained for a collateral purpose, may be dismissed by the Tribunal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 ([10]).
(iv) The Appeal Panel then proceeded to consider whether the Tribunal’s finding that the proceedings were maintained for a collateral purpose, in the relevant sense, was correct.
Evidence relied on to establish the “purpose” of Mr Zonnevylle’s application
(v) Contents of Mr Zonnevylle’s application to the Tribunal:
a. Given the Appeal Panel’s assessment that the Tribunal dismissed Mr Zonnevylle’s application because it was “being maintained for a collateral purpose”, the evidence contained in his application as to why he commenced the proceedings was “not logically probative”, nor was his stated purpose for commencing the proceedings “directly relevant to any issue on appeal” ([51], [65]).
(vi) Contents of previous applications to the Tribunal:
a. The Appeal Panel addressed the Tribunal’s finding at first instance that Mr Zonnevylle’s history in the Tribunal, including the previous applications he had brought against the Minister and the Department of Education, “demonstrates a pattern of making allegations of improper conduct against the staff of agencies, which have been found to be baseless, and repeatedly urging the Tribunal to make findings of illegality which the Tribunal has determined in those proceedings, that it has no power to make” ([52], citing the first instance decision at [67]).
b. The Appeal Panel accepted this as an “accurate summary of Mr Zonnevylle’s conduct” as described in previous decisions of the Tribunal ([53]). However, it expressed the view that “evidence as to why he commenced or maintained other proceedings is not logically probative when making findings as to why Mr Zonnevylle maintained these proceedings” (emphasis added) ([54]).
c. Mr Zonnevylle’s reasons for commencing or maintaining previous applications involving different respondents (i.e. other government agencies) was similarly “not logically probative of his reasons for maintaining these proceedings” ([58]).
(vii) Contents of Mr Zonnevylle’s submissions to the Tribunal:
a. The Appeal Panel considered that there was logically probative evidence for the Tribunal to find that Mr Zonnevylle’s submissions demonstrated “an intention to continue to agitate for findings of a lack of good faith, illegality and misconduct on the part of the respondent, and to seek review of decisions which are outside the scope of his application”, regardless of the implications of the interlocutory decision or other prior decisions of the Tribunal ([60]-[61]).
Meaning and scope of the collateral purpose principle
(viii) The Appeal Panel noted that the Tribunal expressed some doubt as to the merits of Mr Zonnevylle’s substantive application. However, the summary dismissal was not granted because the application was lacking in merit, but rather, because of the Tribunal’s conclusion that Mr Zonnevylle had a “collateral purpose” in maintaining the application ([69]).
(ix) The Appeal Panel accepted the Minister’s submission that (contrary to the Tribunal’s view at first instance) there is “no need to establish that the predominant purpose in maintaining the proceedings is to obtain an advantage” (emphasis added) ([74]).
(x) The Appeal Panel expressed the view that, although the “categories of cases in which a permanent stay may be ordered are not closed”, there are “significant limits on the collateral purpose principle”, determined by balancing the competing policy considerations of ensuring open access to justice and preventing abuses of process ([77]).
(xi) The Appeal Panel found that, in the circumstances of this case, persisting in making claims which are “bad in law” (as the Tribunal found Mr Zonnevylle’s were) is “not the kind of conduct that comes within the meaning of the principle of collateral purpose”. A review of the relevant case law, conducted by the Appeal Panel, supported this conclusion ([83]).
(xii) The Appeal Panel cited various authorities in which proceedings were dismissed as abuses of process on the basis that they had some collateral purpose. However, the present circumstances could be differentiated from each of these. For example, Mr Zonnevylle was not “attempting to coerce the Minister” in a manner similar to the facts in Varawa v Howard Smith Company Ltd (1911) 13 CLR 35, nor did he attempt to “put pressure on the Minister” as was the case in Australian Beverage Distributors Pty Ltd v Redrock Co Pty Ltd [2007] NSWSC 966 ([87]-[90]).
(xiii) The observations in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (citing Walton v Gardiner (1993) 177 CLR 378), which the Minister relied on, were also not on point, as they related to abuses of process arising from “attempts to re-litigate that which has already been determined” or “should have been litigated in earlier proceedings”. In Mr Zonnevylle’s case, his application to the Tribunal had not been disposed of in earlier proceedings ([84]-[86]).
(xiv) Based on its review of the relevant authorities (being distinguished from the circumstances of Mr Zonnevylle’s application), the Appeal Panel affirmed its conclusion that the “principle of collateral purpose does not extend to the facts of this case”, and thus, upheld the appeal, setting aside the Tribunal’s interlocutory decision ([96]).
Costs
(xv) The Appeal Panel accepted it was arguable that Mr Zonnevylle did not co-operate fully with the Tribunal’s guiding principle in the appeal proceedings. Nonetheless, the Appeal Panel found that the appeal had merit (albeit on a basis that Mr Zonnevylle did not articulate). The Minister’s application for costs was therefore refused ([99]-[101]).
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| Zheng v Kim [2019] NSWCATAP 285
Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; L Wilson, Senior Member
The appellant was the landlord, and the respondent the tenant, of premises comprised of a granny flat located at the back of the landlord’s property. The only access to the granny flat was a drive way running down the side of the property, the width of about one car ([9]-[11]).
After the lease was entered into, all communication regarding the tenancy was conducted between the tenant and the landlord’s former husband, Mr Ding ([12]).
The tenant vacated the premises on 1 December 2018 ([14]).
The landlord’s primary challenge in the appeal proceedings was to an order at first instance that the landlord pay the respondent tenant $399.06 in compensation for failing to provide reasonable access to the premises on the day the tenant vacated ([1]-[3]). On that day, two cars were parked in the driveway leading to the granny flat, only one of which was moved upon the tenant’s request. The Appeal Panel referred to this as the “restricted access” issue ([15]).
In appealing the order of compensation, the landlord claimed she was unaware of the tenant’s claim for compensation arising from the restricted access issue when she attended the hearing at first instance, and did not have the opportunity to call a witness to dispute the tenant’s version of events ([35]).
The grounds of appeal arising from this complaint, as understood by the Appeal Panel, were ([46]):
- that the Tribunal gave insufficient weight to the fact that the landlord was not given the tenant’s evidence personally prior to the hearing; and
- that the Tribunal’s refusal to grant an adjournment to the landlord at first instance was so unreasonable or unjust as to suggest that one of the “categories of error” for discretionary decisions had occurred, even though that error did not appear on the face of the reasoning. Those categories of error were enumerated in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef), and include “an error of legal principle”, “a material error of fact”, “[taking] into account some irrelevant matter”, and “fail[ing] to take into account, or [give] sufficient weight to, some relevant matter” (cited at [44]).
The Appeal Panel accepted that, as both of the above grounds involve questions of law, the landlord did not require leave to appeal ([46]).
The Appeal Panel dismissed the appeal. Points addressed by the Appeal Panel include the following:
Ground 2: Refusal to grant an adjournment
(i) In relation to the second ground of appeal, the Appeal Panel cited the requirement in Australian Health Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) NSWCA 61 (AHNA v Hive) at [10] that, in order to find that a decision maker arrived at a plainly unreasonable or unjust decision, the appellate body must be satisfied of the “premise” that the decision maker’s reasons “do not explain the result reached” (emphasis added).
(ii) In this case, the Tribunal’s reasons showed it was satisfied, on the evidence, that the landlord had authorised Mr Ding to act as her agent in relation to matters relating to the tenancy. The landlord did not take issue with that finding on appeal. Accordingly, ground 2 failed.
Ground 1: Insufficient weight given to the evidence
(iii) The Appeal Panel noted that, when it is alleged that a decision maker gave insufficient weight to a relevant matter, deference must be given to the decision of the Tribunal below ([52]).
(iv) Further, it noted the principles set out in AHNA v Hive (cited at [52]-[54]) that:
a. it is insufficient for an appellant to merely persuade an appellate body that it would have decided the matter differently ([13]);
b. for this ground of challenge to succeed in relation to a discretionary decision on practice and procedure, an appellant needs to persuade an appellate body that, not only was insufficient weight given to a relevant matter, but also that, for that reason, the discretion was exercised wrongfully or, put another way, the decision was clearly wrong ([17]); and c. there is a “strong presumption” in favour of the correctness of the decision below ([18]).
(v) Although the Appeal Panel noted it “might have decided the issue differently”, it was not persuaded that insufficient weight was given to the fact identified by the landlord, nor that the Tribunal’s decision was clearly wrong, or that its exercise of discretion was clearly wrong ([55]).
(vi) In the circumstances of this case, the landlord had been given a reasonable opportunity to be heard by her appointment of Mr Ding and his receipt of the materials relevant to the Tribunal proceedings ([60]-[62]).
(vii) While not finding that this occurred here, the Appeal Panel noted the Court of Appeal’s finding in Micallef that, while the exercise of discretions such as this may sometimes result in the determination of an issue without a hearing on the merits, that itself is not necessarily unreasonable or unjust ([63] citing Micallef at [85]).
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| Shaw v Hartman [2019] NSWCATAP 290
Consumer and Commercial Division - Tenancy
G Curtin SC, Senior Member; K Ransome, Senior Member
This was a second appeal by the appellant from a decision of the Tribunal concerning disputes between the appellant tenant and the respondent landlords ([1]). That decision, amongst other things, dismissed a claim by the appellant that a notice of termination issued by the landlords was “retaliatory” ([10]).
Prior to this appeal, the decision below had already been appealed once by the tenant and once by the landlords, each appeal resulting in consent orders being made to set aside and substitute portions of the first instance orders. In addition, separate proceedings commenced by the landlords in the Tribunal had also resulted in consent orders, to the effect that the residential tenancy agreement was terminated, and the tenants required to pay a daily occupation fee until they vacated the premises ([17]).
The Appeal Panel dismissed the appeal. Points addressed by the Appeal Panel include the following:
Extension of time
(i) This appeal (being the tenant’s second appeal in respect of the decision below) was not brought within time, but was filed over 4 months after the decision and reasons were given to the parties ([21]).
(ii) The Appeal Panel cited the principles applying to applications for extensions of time, as “collected” in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Those principles include ([24]):
a. That time limits should generally be strictly enforced because they promote the orderly and efficient conduct of proceedings, provide certainty to the parties and achieve finality in proceedings;
b. That exceptions may be made when the interests of justice so require;
c. That generally, in order to obtain an extension of time, there should be material (evidence) which persuades an Appeal Panel that refusal of the application would work an injustice; and
d. That the length of the delay, reasons for the delay, the appellant’s prospects of success and the extent of any prejudice which would be suffered by a respondent if an extension was granted will all be considered.
(iii) The tenant did not provide any material in support of her application for an extension of time ([25]).
(iv) The reasons given by the tenant for seeking an extension included that she was “not given the opportunity to appeal”, and was not informed of her right to appeal. As the tenant had already filed and participated in an appeal in respect of the same decision, the Appeal Panel found this could not be true ([27], [30]).
(v) Overall, the Appeal Panel was not persuaded by the reasons given by the tenant for seeking an extension of time for filing her Notice of Appeal ([31]).
“Anshun estoppel”
(vi) In addition to the insufficient reasons given by the tenant for seeking an extension of time, the Appeal Panel found there were “further difficulties” with the tenant’s appeal ([32]).
(vii) In particular, the tenant was seeking to “re-argue matters” that were decided by the Tribunal at first instance, and were either not appealed from by her in her first appeal, or were appealed from but were “subsumed” by the consent orders made on that appeal, and in relation to the subsequent application by the landlord ([33]).
(viii) Most particularly, the Appeal Panel found that this obstacle applied to the tenant’s appeal from the finding at first instance that the landlords’ initial termination of the lease was “not retaliatory”. This finding was not challenged in the tenant’s first appeal. Moreover, the tenant had subsequently consented to orders made in the landlords’ separate application to the Tribunal that the tenancy agreement be terminated immediately. Having thus consented to the (albeit later) termination of the tenancy agreement, “there was no life remaining in an allegation that the termination was retaliatory” ([34]-[35]).
(ix) The Appeal Panel also noted that the tenant now sought to “re-argue the matter of excessive rent”, challenging an order granting a rent reduction at first instance (i.e. arguing the reduction should have been greater). That issue was similarly not raised in the tenant’s first appeal. However, it was raised in the landlords’ appeal, and was substituted by consent at the conclusion of that appeal with an order that the landlords pay the appellant a lesser sum of $920 ([39]-[40]).
(x) The Appeal Panel found that, “[t]o now seek to appeal on these issues and thus have awarded to her a sum greater than $920 would be to subvert that agreement and the orders made by the Tribunal on the Landlord’s Appeal, which orders were made with the tenant’s consent” ([41]).
(xi) The Appeal Panel emphasised that “to entertain” an appeal from the consent orders made in the landlords’ appeal and separate application would “open the possibility of conflicting decisions (orders)”, citing the High Court authority in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 ([42]-[43]).
(xii) “In layman’s terms”, the Appeal Panel stated, “a person will not be allowed to seek orders which, if the case succeeds, will conflict with orders made in an earlier case” ([44]).
(xiii) In the present appeal, the tenant sought orders which would, if she were successful, conflict with the consent orders made in the landlords’ appeal and their separate application to the Tribunal. The Appeal Panel was “not persuaded that this possibility should be allowed” and, accordingly, perceived the tenant’s appeal to “have no prospects of success” ([44]).
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| | | Guo v The Owners – Strata Plan No 70067 (No 2) [2019] NSWCATAP 266
Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; S Thode, Senior MemberCatchwords: Costs – special circumstances established |
| Asuzu v NSW Land and Housing Corporation [2019] NSWCATAP 267
Consumer and Commercial Division - Social Housing
Decision of: T Simon, Principal Member; G Sarginson, Senior MemberCatchwords: LANDLORD AND TENANT – Termination of tenancy for non-payment of rent – Rent rebate cancelled by landlord – Jurisdiction of Tribunal |
| Como Leather Pty Ltd v Kerr [2019] NSWCATAP 268
Consumer and Commercial Division - Consumer claim
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior MemberCatchwords: CONSUMER LAW – misleading or deceptive conduct – adequacy of reasons - representation as to material – no question of principle |
| The Owners – Strata Plan 60590 v Whitman [2019] NSWCATAP 269
Consumer and Commercial Division - Strata
Decision of: P Durack, SC, Senior Member; S Thode, Senior MemberCatchwords: APPEAL – costs |
| Martin v McCarthy-Nielsen [2019] NSWCATAP 270
Consumer and Commercial Division - Tenancy
Decision of: Armstrong J, President; S Thode, Senior Member Catchwords: RESIDENTIAL TENANCY – no error of law – no question of principle |
| Smith v Opalite Industries Pty Ltd t/as Opalite Caravans [2019] NSWCATAP 271
Consumer and Commercial Division - Motor Vehicles
Decision of: M Harrowell, Deputy President; A Boxall, Senior MemberCatchwords: CONSUMER LAW – misrepresentations in connection with the supply of a caravan and information recorded on its compliance plate – determination of factual matters adverse to the appellants – refusal of leave to appeal. |
| Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 (No 2) [2019] NSWCATAP 272
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; L Pearson, Principal MemberCatchwords: COSTS – appeal from Consumer and Commercial Division – whether r 38 and r 38A Civil and Administrative Tribunal Rules 2014 apply – whether appropriate order is order for costs in the cause |
| ZLX v ZLY [2019] NSWCATAP 273
Guardianship Division
Decision of: A Britton, Principal Member; J Kearney, Senior Member; F Given, General MemberCatchwords: COSTS – whether special circumstances warranting an award of costs are established
WORDS AND PHRASES — meaning of phrase “special circumstances” in s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) |
| Zonnevylle v Minister for Education and Early Childhood Learning [2019] NSWCATAP 274
Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; G Walker, Senior MemberCatchwords: APPEAL – where tribunal dismissed whole proceedings as vexatious because predominantly brought for a collateral purpose – whether Tribunal applied a wrong principle as to the scope of collateral purpose |
| Mr Car Proprietary Ltd v Archer [2019] NSWCATAP 275
Consumer and Commercial Division - Motor Vehicles
Decision of: P Durack SC, Senior Member; D Robertson, Senior Member Catchwords: APPEAL – sale of second hand motor vehicle – mileage too high for statutory guarantee under Motor Dealers and Repairers Act NSW 2013 – whether acceptable quality under NSW Australian Consumer Law – no question of law involved – no appellable error of fact |
| ZMZ v NSW Trustee and Guardian [2019] NSWCATAP 276
Guardianship Division
Decision of: C Fougere, Principal Member; A Suthers, Principal Member; M Bolt, General MemberCatchwords: APPEAL – Appeal from orders made by Guardianship Division – decision to confirm financial management order – decision to confirm appointment of NSW Trustee and Guardian – no denial of procedural fairness – balancing of section 4 principles – no failure to give sufficient weight to views of protected person as reflected in enduring power of attorney – leave to appeal refused – appeal dismissed. |
| Brock v Seymour [2019] NSWCATAP 277
Consumer and Commercial Division - Commercial
Decision of: A Bell SC, Senior Member; S Thode, Senior MemberCatchwords: APPEAL – Error of Law - Conduct of parties at hearing – Failure of Appellant to comply with Directions to provide sound recording or transcript of the hearing |
| Smith v Ozzy's Cheapest Cars Pty Ltd [2019] NSWCATAP 278
Consumer and Commercial Division - Motor Vehicles
Decision of: G K Burton SC, Senior Member; K Ransome, Senior MemberCatchwords: CONSUMER CLAIM – used motor vehicle – alleged breach of statutory warranties – alleged misleading conduct – alleged major failure – remedies |
| Babic v De Souza [2019] NSWCATAP 279
Consumer and Commercial Division - Consumer claim
Decision of: G K Burton SC, Senior Member; K Ransome, Senior MemberCatchwords: Consumer claim – clinical anaesthetic services in hospital - alleged breach of consumer guarantees |
| Commissioner of Police, NSW Police Force and State of NSW v Denny; Commissioner of Police, NSW Police Force and State of NSW v Power; Commissioner of Police, NSW Police Force and State of NSW v Targett; Commissioner of Police, NSW Police Force and State of NSW v Clarke; Denny v Commissioner of Police, NSW Police Force and State of NSW; Targett v Commissioner of Police, NSW Police Force and State of NSW; Power v Commissioner of Police, NSW Police Force and State of NSW; Clarke v Commissioner of Police, NSW Police Force and State of NSW [2019] NSWCATAP 280
Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; L Pearson, Principal Member Catchwords: APPEAL – correct and preferable decision – was impounding of items unlawful - Impounding fees and charges |
| Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management (No 2) [2019] NSWCATAP 281
Consumer and Commercial Division - Consumer claim
Decision of: S Higgins, Senior Member; P H Molony, Senior MemberCatchwords: COSTS – no special circumstances warranting a departure from the general rule that each party pay its own costs |
| Koutsis v North Shore Automotive Pty Ltd [2019] NSWCATAP 282
Consumer and Commercial Division - Motor Vehicles
Decision of: M Harrowell, Deputy President; M Anderson, Senior Member Catchwords: CONSUMER LAW – motor vehicle repair services – supply of specified services – obligation to investigate and report issues unrelated to services requested – subsequent failure of engine – liability of repairer. |
| Robinson v Mistlake Investments Pty Ltd [2019] NSWCATAP 283
Consumer and Commercial Division - Commercial
Decision of: G Curtin SC, Senior Member; D Goldstein, Senior MemberCatchwords: LEASES AND TENENACIES – retail lease – make good provision – assessment of damages – no point of principle |
| Blue Haven Pools South Pty Ltd v Maloney (No 2) [2019] NSWCATAP 284
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; J Kearney, Senior MemberCatchwords: COSTS |
| Zheng v Kim [2019] NSWCATAP 285
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; L Wilson, Senior MemberCatchwords: CIVIL PROCEDURE – hearings – adjournment – exercise of discretion – proper test for insufficient weight given to a relevant matter – proper test for plainly unreasonable or unjust – no point of principle |
| Elwers v The Owners – Strata Plan No. 83379 [2019] NSWCATAP 286
Consumer and Commercial Division - Strata
Decision of: R Hamilton SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – Application for leave to appeal – No question of principle – Costs – Existence of special circumstances – Gross sum costs order |
| Titus v Eddington (No 2) [2019] NSWCATAP 287
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; J McAteer, Senior Member Catchwords: Costs on appeal |
| Casuscelli v Community Association DP 270482; Shonroo Pty Ltd v Community Association DP 270482 (No 2) [2019] NSWCATAP 288
Consumer and Commercial Division - Community Schemes
Decision of: The Hon F Marks, Principal Member; L Wilson, Senior MemberCatchwords: APPEAL – appellants successful on grounds not raised in notice of appeal – held appellants entitled to partial costs order – held documentation produced by respondent satisfied order to produce short minutes of order |
| The Owners – Strata Plan No. 54026 v UniLodge Australia Pty Ltd [2019] NSWCATAP 289
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Deputy PresidentCatchwords: PRACTICE AND PROCEDURE – transfer of proceedings from the Civil and Administrative Tribunal to the Supreme Court of New South Wales – interlocutory decision – leave to appeal refused |
| Shaw v Hartman [2019] NSWCATAP 290
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL AND NEW TRIAL – general principles – extension of time to appeal – requirements – orders sought would conflict with earlier consent orders - Anshun estoppel |
| Wong v Azzi [2019] NSWCATAP 291
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; K Ransome, Senior MemberCatchwords: LANDLORD AND TENANT – rent – breach of covenant to pay – no question of principle |
| Frost v TAFE Commission [2019] NSWCATAP 292
Administrative and Equal Opportunity Division
Decision of: Hennessy ADCJ, Deputy President; P Molony, Senior MemberCatchwords: APPEAL – where appellant appealed from two interlocutory decisions – where substantive hearing complete except for providing written submissions – whether leave should be given to appeal from two interlocutory decisions |
| Pollack v The Owners – Strata Plan No 2834; The Owners – Strata Plan No 2834 v Pollack (No 2) [2019] NSWCATAP 293
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; M Anderson, Senior MemberCatchwords: Costs on appeal |
| Nutek Constructions Pty Ltd v Juno Australia Pty Ltd [2019] NSWCATAP 294
Consumer and Commercial Division - Home Building
Decision of: T Simon, Senior Member; D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed; COSTS – indemnity costs – no reasons given for award of indemnity costs – no justification for award of costs on the indemnity basis |
| Dawood v Master Wealth Control Pty Ltd t/as DG Institute (No 2) [2019] NSWCATAP 295
Consumer and Commercial Division - Consumer claim
Decision of: L Pearson, Principal Member; J McAteer, Senior Member Catchwords: COSTS – whether special circumstances |
| Lysle v Stewart [2019] NSWCATAP 296
Consumer and Commercial Division - Home Building
Decision of: T Simon, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – Home Building, jurisdiction, transfer, leave to appeal, no issue of principle |
| Statewide Design & Print Pty Ltd v Icon Supplies Pty Ltd [2019] NSWCATAP 297
Consumer and Commercial Division - Motor Vehicles
Decision of: G K Burton SC, Senior Member; A Boxall, Senior MemberCatchwords: CONSUMER CLAIM - motor vehicle - alleged contract and total failure of consideration - no contract - no basis for recovery in money had and received |
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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