| | | | | | | NCAT Appeal Decisions Digest October 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 October 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| ZDU v ZDV [2017] NSWCATAP 197
Guardianship Division - Financial management
Decision of: M Schyvens, Deputy President; C Fougere, Principal Member; M Bolt, General Member
Background: ZDU was a 29 year old man with a history of intellectual disability, who lived with his partner, and carer, ZEF. ZDV, a clinical neuropsychologist, applied for a financial management order for ZDU. The Tribunal ordered that ZDU’s estate be subject to a financial management order under the management of the NSW Trustee and Guardian.
ZDU appealed, contending (among other things): (i) that the Tribunal had failed to apply the correct statutory test in making the financial order over ZDU’s estate; and (ii) that ZDU and ZEF had been denied procedural fairness in the proceedings below.
Held: (allowing the appeal) (i) The Tribunal did not apply the correct statutory test in making the financial order. Section 25G of the Guardianship Act 1987 (NSW) sets out the Tribunal’s power to make a financial order. Section 4 of the Guardianship Act requires the Tribunal to give consideration to a list of general principles in exercising functions under the Act with respect to persons who have disabilities.
The Tribunal failed to consider and evaluate ZDU’s youth and employment history, ZDU’s relationship with ZEF, and ZDU’s freedom of decision and freedom of action through the prism of the principles set out in s 4 of the Guardianship Act. ([35], [36] [40]-[42])
WL v NSW Trustee and Guardian [2011] NSWADTAP at [71]-[75], followed.
P v NSW Trustee and Guardian [2015] NSWSC 579 at [56]-[62], [207], [311], applied.
(ii) The Tribunal denied ZDU and ZEF procedural fairness. As ZDU’s carer, ZEF was a party to proceedings under s 3F(5)(d) of the Guardianship Act.
Section 38(5)(a) requires the Tribunal to take such measures that are reasonably practicable to ensure that parties understand “the nature of the proceedings”.
The Tribunal failed to ensure that ZDU and ZEF, who were unrepresented and opposed the making of a financial order, understood the nature of the proceedings in which they were involved.
The Tribunal failed to inform ZDU and ZEF that who should be appointed as ZDU’s financial manager was an issue in the proceedings and that it was possible that it should be ZE F, thereby effectively denying them an opportunity to be heard on that issue.([46]-[49], [54]). |
| Slee v De Graaf; Slee v Clough; Slee v Davies [2017] NSWCATAP 199
Consumer and Commercial Division - General
Decision of: K O’Connor AM, ADCJ, Deputy President Appeals; Dr J Lucy, Senior Member
Background: An operator of a vocational training business made statements to students about a makeup course. Six students lodged applications with the Tribunal, claiming that the operator’s statements were misleading and deceptive and had induced them to enrol in her course.
The Tribunal found in favour of three of the students, who claimed that the operator had represented to them that her course was “industry recognised” or “internationally recognised”. The Tribunal ordered the operator to repay to each of the three students their course fees, but rejected their other loss claims.
The operator appealed, contending (among other things) that, in accepting the students’ recollections of oral communications, the Tribunal had failed to apply properly the civil standard of proof by not showing the degree of caution required in making adverse findings based on recollection of oral communications and by not having regard to the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
Held: (dismissing the appeal) The Tribunal properly applied the civil standard of proof in accepting the students’ recollections of oral communications.
The Tribunal was not required to limit its reliance on recollections of oral communications in the absence of any contemporaneous or corroborative objective evidence to support their claims because the oral statements were from the relatively recent past and made in circumstances where the operator was promoting the value of enrolling in her course. ([22]-[28], [44])
Watson v Foxman (1995) 49 NSWLR 315 at 319, distinguished.
The Tribunal gave attention to the types of factors referred to in Briginshaw and reached the required degree of satisfaction. To apply statements made in previous decisions concerning specific commercial factual situation in a rule-like way would make it extremely difficult for consumers to prosecute claims based on alleged oral representations in settings such as the present. ([38]-[40], [43]).
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| Mercieca v Fu [2017] NSWCATAP 205
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; A Boxall, Senior Member
Background: On 19 January 2017, landlords, Ms Fu and Mr Yizhaki, gave a termination notice, under s 84(1) of the Residential Tenancies Act 2010 (NSW), to Mr Mercieca, their tenant, informing him that his fixed term residential tenancy agreement was to end on 2 March 2017.
Sections 84 and 115 of the RT Act relevantly provide:
“84 End of residential tenancy agreement at end of fixed term tenancy
(1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.
…
(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
…
115 Retaliatory evictions
(1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice:
(a) declare that a termination notice has no effect, or
(b) refuse to make a termination order,
if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.
(2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons:
(a) the tenant had applied or proposed to apply to the Tribunal for an order,
(b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,
(c) an order of the Tribunal was in force in relation to the landlord and tenant.
(3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.”
On 3 March 2017, the tenant applied to the Tribunal for an order that his rent was “excessive” under s 44(1)(b) of the RT Act, and that the termination notice given to him was “retaliatory” under s 115(2) of the RT Act.
On 6 March 2017, the landlords applied for a termination order under s 84(3) of the RT Act to terminate their agreement with the tenant.
In hearing the two matters, the Tribunal:
(i) found that the tenant’s application under s 115(1) was lodged out of time and declined to extend the time;
(ii) decided that s 115 of the RT Act does not apply to s 84; and
(iii) in the event that s 115 applied to a termination notice given under s 84, found that the landlords’ application under s 84(1) was not retaliatory .
The tenant appealed, claiming (among other things) (i) that there was no need to extend the time to apply under s 115(3) as the Tribunal could find the termination notice was retaliatory without such an application; (ii) that the Tribunal erred in deciding that s 115 of the RT Act did not apply to a termination of a fixed term lease; and (iii) that the Tribunal erred in finding that the termination notice was not retaliatory.
Held: (dismissing the appeal) (i) A tenant has 14 days after a termination notice is given in which to make an application that the notice is retaliatory - cl 22(4)(b) of the Residential Tenancy Regulation 2010.
There was no error in the Tribunal’s refusal to extend time that would warrant granting leave to appeal. ([32]-[39])
Clarke v Tapp [2015] NSWCATAP 81 at [18]-[20], considered.
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], considered.
(ii) The Tribunal has the power to make a declaration under s 115(1) of the RT Act in relation to a termination notice given to a tenant under s 84 of that Act. ([26], [40]-[44])
Quader v Bell [2017] NSWCATAP 24, followed.
(iii) It was open to the Tribunal to find that the landlords’ termination notice under s 84(1) was not retaliatory within the meaning of s 115(2). ([50]-[54]).
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| Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83
Consumer and Commercial Division - Strata
Decision of: Wright J, President; M Harrowell, Principal Member; R Seiden SC, Principal Member
Background: On 14 September 2016, a lot owner commenced proceedings under the Strata Schemes Management Act 1996 (NSW) (1996 Act) against an Owners Corporation, seeking orders that it arrange for repairs to be made to his lot.
On 30 November 2016, s 275 of the Strata Schemes Management Act 2015 (NSW) (2015 Act) repealed the 1996 Act.
On 8 December 2016, a Strata Schemes Adjudicator made orders in favour of the lot owner.
On 7 April 2017, the lot owner applied to the Tribunal, seeking orders that it enforce the Adjudicator’s orders made on 8 December 2016 and impose a civil penalty on the Owners Corporation for alleged non-compliance with the previous orders.
The civil penalty order was sought under s 202 of the 1996 Act.
An issue arose as to whether the Tribunal had the power to hear and determine the application for a penalty under s 202 of the 1996 Act after the repeal of that Act.
Held: (i) Adjudicators’ orders made, by virtue of cl 7 of Sch 3 to the 2015 Act, after the repeal of the 1996 Act can generally be enforced under the 1996 Act, by virtue of s 30(1) of the Interpretation Act 1987 (NSW), as if the 1996 Act had not been repealed. ([1], [83], [85]) (ii) Thus, the Tribunal could hear and determine civil penalty proceedings under s 202 of the 1996 Act where there has been non-compliance with an Adjudicator’s order made after the repeal of that Act. ([72]-[74], [86]).
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| The Owners - Strata Plan No 82306 v Anderson [2017] NSWCATCD 85
Consumer and Commercial Division - Strata
Decision of: Wright J, President; M Harrowell, Principal Member; R Seiden SC, Principal Member
Summary: On 12 April 2016, an Owners Corporation commenced proceedings under the Strata Schemes Management Act 1996 (NSW) (1996 Act) against a lot owner, seeking orders that she replace the floor finish in her lot with a floor that complied with the by-laws of the Strata Scheme.
On 30 June 2016, a Strata Schemes Adjudicator made orders in favour of the Owners Corporation.
On 30 November 2016, s 275 of the Strata Schemes Management Act 2015 (NSW) (2015 Act) repealed the 1996 Act.
On 18 May 2017, the Owners Corporation applied to the Tribunal for an order that the lot owner pay a pecuniary penalty for failing to comply with the Adjudicator’s order.
Held: (imposing under s 202 of the 1996 Act a penalty of $2,500 on the lot owner, with conditions):
(i) The application based on s 77 of the Civil and Administrative Tribunal Act 2013 (NSW) should be dismissed because it had not been commenced by “an authorised official” as required by s 75 of that Act. ([42]-[44])
(ii) By virtue of s 30(1) of Interpretation Act 1987 (NSW), Adjudicators’ orders made in proceedings under the 1996 Act prior to the repeal of that Act remain in force and have effect and can be enforced under s 202 of the 1996 Act as if that Act had not been repealed. ([48]-[49], [51]-[55])
Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 at [64], [69], applied.
(iii) Relevant factors to be considered when determining whether a pecuniary penalty is to be imposed and the amount of that penalty under s 202 of the 1996 Act include:
(1) The nature and extent of the contravention;
(2) The circumstances in which the contravention took place;
(3) The effect of the contravention on the operation, administration or management of the strata scheme in question;
(4) The maximum penalty that may be imposed;
(5) The need for deterrence, both specific and general;
(6) The individual or personal circumstances of the contravenor;
(7) Any other relevant mitigating circumstances;
(8) Where there are a number of contraventions:
(a) whether it is appropriate to impose separate penalties; and
(b) whether the penalty or penalties are appropriate having regard to the totality principle.
([77]-[79], [86])
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93]-[94]; [2007] FCAFC 65, considered.
Commonwealth v Director, Fair Work Building Inspectorate (2015) 258 CLR 482 at [55], considered.
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| | | Langford-Smith v Harris [2017] NSWCATAP 198
Consumer and Commercial Division - Tenancy
Decision of: L Pearson, Principal Member; R Titterton, Principal Member Catchwords: RESIDENTIAL TENANCY AGREEMENT – leave to appeal – no question of principle. APPLICATION FOR LEAVE TO APPEAL – where matters not argued previously raised on appeal. |
| Kumar v Sabharwal [2017] NSWCATAP 200
Consumer and Commercial Division - Home building
Decision of: I Bailey AM SC, Senior Member; R Titterton, Principal Member Catchwords: APPEAL – application for extension of time – no question of principle |
| Eadie v Harvey [2017] NSWCATAP 201
Consumer and Commercial Division - Strata
Decision of: G Curtin SC, Senior Member; J Currie, Senior MemberCatchwords: STRATA TITLES – due adoption and registration of By-Laws – effect of Model By-Laws under Strata Schemes Management Act 1996 (NSW) and Strata Schemes Management Act 2015 (NSW) – effect of oral agreements to vary – absence of licence to use the common property or any proposed change of relevant by-law – effect of ss 131(2) and 149(3) of Strata Schemes Management Act 2015 (NSW). APPEALS – consideration of evidence by Tribunal below – what constitutes proper consideration – appeal dismissed. |
| ZEG v ZEK [2017] NSWCATAP 202
Guardianship Division - Guardianship
Decision of: Boland ADCJ, Deputy President; M Schyvens, Deputy President; Dr M Worth, Professional Member Catchwords: PROTECTIVE JURISDICTION – appeal against decision of Tribunal to continue appointment of the Public Guardian as guardian for ZEK – no error of law demonstrated |
| Pollak v Masterglass Facades Pty Ltd [2017] NSWCATAP 203
Consumer and Commercial Division - Home building
Decision of: Hon F Marks ADCJ, Principal Member; G Sarginson, Senior Member Catchwords: RESIDENTIAL BUILDING WORK – contractor unlicensed and work uninsured – quantum meruit claim under s 94(1A) Home Building Act upheld on appeal – appeal dismissed. |
| ZDP v ZDQ [2017] NSWCATAP 204
Guardianship Division - Financial management
Decision of: M Schyvens, Deputy President; C Fougere, Principal Member; G Jamieson, Senior Member Catchwords: APPEAL – appeal from orders made by Guardianship Division – decision to dismiss application for financial management order – no denial of procedural fairness – decision not against weight of evidence – appeal dismissed. |
| Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 2016
Administrative and Equal Opportunity Division - Administrative review
Decision of: M Harrowell, Principal Member; J McAteer, Senior Member Catchwords: CONFIRMATION OF DECISION TO REVOKE FIREARMS LICENSE – grounds for revocation – possession of prohibited firearms – public interest considerations. FIREARMS ACT – manufacture of firearms and firearm parts – scope of authority granted by licence – unsuccessful attempt to manufacture prohibited weapon or firearm part – use of 3-D printer for purpose of manufacture. STOCK FITTED TO FIREARM – designed to act telescopically – meaning of phrase |
| Walsh v Gibson [2017] NSWCATAP 207
Consumer and Commercial Division - Tenancy
Decision of: K O’Connor, AM, ADCJ, Deputy President Appeals, D Charles, Senior Member Catchwords: RESIDENTIAL TENANCY – malfunctioning septic system – reduction of amenity – appeal against order for rent reduction – no error of law – no substantial miscarriage of justice – appeal dismissed. |
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