| | | | | NCAT Appeal Decisions Digest October 2018 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 during October 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Cahn v The Owners – Strata Plan No 586 [2018] NSWCATAP 234, regarding the removal of a dog from a strata scheme, and the meaning of “assistance animal” under the Disability Discrimination Act 1992 (Cth);
- CBL v Southern Cross University [2018] NSWCATAP 236, which looked at whether the automatic redirection of an email contravened the Privacy and Personal Information Protection Act 1998 (NSW);
- David Cameron Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238, concerning whether time limits on jurisdiction apply separately to each claim brought in a home building application;
- Thelfro v Merbron Pty Ltd t/as Burraneer Bay Marina [2018] NSWCATAP 251, which considered whether a claim by a purchaser against the agent of a vendor is a consumer claim under s 79E of the Fair Trading Act 1987 (NSW); and
- ZII v ZIJ [2018] NSWCATAP 255, involving the presumption of capacity.
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| Cahn v The Owners – Strata Plan No 586 [2018] NSWCATAP 234
Consumer and Commercial Division - Strata
M Harrowell, Principal Member; R Seiden SC, Principal Member
On application by the Owners Corporation of a strata scheme in Rose Bay, the appellant was ordered to remove her silky terrier, Lola, from her lot and the common property. It was found that Lola was causing a nuisance and disturbance by barking, roaming and defecating on common property, and was thereby in breach of a bylaw.
The key issues on appeal were whether:
1) the Tribunal denied the appellant procedural fairness;
2) Lola was an assistance animal, and thereby exempt from the bylaw;
3) the Tribunal was correct in its findings concerning the conduct and supervision of Lola; and
4) the bylaw was harsh, unconscionable or oppressive.
On appeal, a question of jurisdiction arose, being whether Lola was an assistance animal under the Disability Discrimination Act 1992 (Cth) (DD Act). Both parties accepted that Johnson v Dibbin should be followed: insofar as proceedings raise a federal matter, the Tribunal has jurisdiction to determine the claim ([5]-[10]).
Held (dismissing the appeal): (i) there was no denial of procedural fairness as the appellant was afforded an opportunity to make submissions, provide evidence, and cross-examine the respondent’s witnesses ([43]-[44]). Further, there was “no suggestion” that the Tribunal did not have regard to her evidence ([43]).
(ii) Lola was not a registered or accredited assistance animal, per s 9(2) of the DD Act ([45]-[49]). As such, the bylaw applied and, absent consent from the Owners Corporation, the appellant was obliged to remove Lola from the strata scheme ([56]).
(iii) In light of conflicting evidence, “the Tribunal was entitled to prefer the evidence of the Owners Corporation’s two witnesses, which were generally consistent with each other, to that of the evidence of the appellant.” ([67]) Accordingly ([69]):
“it could not be said “the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach” and we are not satisfied the appellant may have suffered a substantial miscarriage of justice in all the circumstances.”
(iv) The conduct identified by the appellant was not relevant to determining whether the bylaw is itself harsh, unconscionable or oppressive ([73]):
“a challenge to a bylaw under s 150(1) of the Strata Schemes Management Act 2015 (NSW) “requires a party to establish “that the by-law is harsh, unconscionable or oppressive” not that the lot owners, owners corporation or strata committee have acted in a manner which is harsh, unconscionable or oppressive.”
In making orders, the Appeal Panel made the following practical suggestion ([81]):
“It would be hoped in the circumstances of this case that any subsequent request for approval to keep Lola might be referred to the Owners Corporation in General Meeting. While we are not suggesting the Strata Committee has in any way acted unreasonably, nor are we suggesting there is an obligation to do so, such an approach might minimise the possibility of any further disputation and give the owners in general meeting a chance to express their views about the keeping of animals.”
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| CBL v Southern Cross University [2018] NSWCATAP 236
Administrative and Equal Opportunity Division
Hennessy, LCM, Deputy President; Dr J Lucy, Senior Member
Due to a rule in the respondent’s email system, any emails received from the appellant were automatically redirected to the respondent’s Legal Office. The appellant applied to the Tribunal, which found that the respondent’s conduct did not contravene the Privacy and Personal Information Protection Act 1998 (NSW).
On appeal, the appellant claimed the Tribunal had erred in reaching that decision, because the conduct breached the information protection principles relating to the collection (ss 8 and 10), disclosure (s 17) and use (s 18) of personal information.
Held (dismissing the appeal): (i) no breach of ss 8 and 10: the Tribunal correctly concluded that “the email redirection itself did not contravene either of the information protection principles relating to collection”, for the reasons that ([19]):
“The collection of the information is collection by the University, not by the individual to whom the email is redirected. Consequently, the email redirection was not conduct which collected CBL’s information.”
(ii) No breach of s 17: the Tribunal correctly answered “no” to the “threshold question…whether the email redirection constitutes a “use” of the information” ([27]):
“The email redirection merely redirected the personal information in the emails from the addressee to another unit within the agency.”
(iii) No breach of s 18: even though the Tribunal made an error of law as there was no evidence for its finding that the email redirection constitutes an internal disclosure.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157, applied.
Nonetheless, “this error made no difference to the Tribunal’s decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [80]; 170 CLR 321.” ([29]-[30]) Further, the Appeal Panel noted that “we doubt that any internal movement of information within an agency could constitute a disclosure.” ([30])
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| David Cameron Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238
Consumer and Commercial Division - Home Building
K Rosser, Principal Member; D Robertson, Senior Member
The appellant builder contracted with the respondent homeowners to build a residential duplex. Issues arose and the homeowners sought damages, as well as $200,000 for breaches of statutory warranties under s 18B of the Home Building Act 1989 (NSW) (HBA). The builder was ordered to pay the homeowners $49,273.25.
The grounds of appeal included that the Tribunal erred in:
1) finding that it had jurisdiction under s 48K of the HBA, and that it was required to consider its jurisdiction separately for each cause of action;
2) finding that there was a major defect; and
3) taking into account an irrelevant matter.
Held (dismissing the appeal): (i) the Tribunal’s approach to s 48K (“Jurisdiction of Tribunal in relation to building claims”) was correct, in that each “separate claim is a “building claim” and the Tribunal’s jurisdiction to determine each such claim is to be determined separately ([42]). However, “all claims brought in one application are to be aggregated for the purpose of determining the “amount claimed”.” ([34])
The presumption that an expression used in legislation is used consistently throughout, ““must yield to the requirements of the context”: McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 144 CLR 633 at 643, Gibbs ACJ.” ([35]) On this basis, the “use of the singular (“a supply” and “a breach”) [in the definition of “building claim” in s 48A] is more consistent with each claim in respect of an identified breach of contract or breach of statutory warranty being a separate building claim.” ([36]-[37])
So, where it includes multiple claims, “the whole application will not be outside of the jurisdiction of the Tribunal merely because the application was commenced more than two years after the commencement of the warranty period.” ([44])
This approach took into account the implications of the alternative view ([51]):
“It is not appropriate that individual home owners, seeking compensation in respect of major defects in their homes, should be at risk of having their applications dismissed for want of jurisdiction because they have unwittingly included in their application a claim subject to a lesser limitation period under s 48K.”
(ii) The finding of a “major defect” in the waterproofing was not made without evidence nor was it against the weight of evidence. In so finding, it was not necessary to precisely identify the defect; it was sufficient to show that there was water penetration ([65]-[66]).
(iii) The Tribunal did not take into account an irrelevant consideration, nor was the decision was against the weight of evidence or not fair and equitable: each of the matters relied upon by the Senior Member was supported by evidence ([71]).
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| Thelfro v Merbron Pty Ltd t/as Burraneer Bay Marina [2018] NSWCATAP 251
Consumer and Commercial Division - Motor Vehicles
M Harrowell, Principal Member; G Sarginson, Senior Member
The Tribunal found that it did not have jurisdiction to hear a claim brought by the purchasers of a boat against the agent for the vendor, because it was not a consumer claim under s 79E of the Fair Trading Act 1987 (NSW) (“FT Act”).
The appellants say the boat was advertised by the agent on terms that the engine had been replaced in 2013, and that, as a result of the engine in fact being much older and subsequently failing and requiring repairs, they had suffered loss.
On appeal, the question to be resolved was whether a claim by a purchaser against the agent of a vendor, for misleading and deceptive conduct or misrepresentation when acting on a vendor’s behalf, is a consumer claim within the meaning of the FT Act. Section 79E defines a “consumer claim” as arising from “the supply of goods and services by a supplier to the consumer (whether or not under a contract).” ([23]-[24])
While there was clearly a supply of services by the agent to the vendor, the “question [was] whether or not there was also a supply of services by the agent to the appellants, in circumstances where they were not the contracting party.” ([29])
Held (allowing the appeal and remitting the matter): (i) the definition of “supply” is “inclusive” and “should be construed in a beneficial way”. It was found that advertising the boat online “is to provide or furnish to that person a service and is therefore a supply” ([33]-[35]). It was further noted that ([35]):
“It would be a curious result to construe [“supply”] in a manner whereby a vendor paying for advertising services, as a consumer, would be able to bring a claim in the Tribunal against his agent, but a consumer to whom the advertising was directed could not do so.”
See Logan J’s definition of “supply” in Australian Competition and Consumer Commission v Flight Centre Limited (No 2) [2013] FCA 1313 at [130].
(ii) The “service” was provided in trade and commerce, the agent carrying on the business of broking boats for reward, meaning that the agent is therefore a supplier within the meaning of the FT Act, s 79D ([36]).
(iii) In conclusion, the Appeal Panel was “satisfied that there was a supply by the agent (as supplier) to the appellants (as consumers), and … the appellants’ claim – alleging misrepresentation or false or misleading conduct of the agent – is a consumer claim within the meaning of the FT Act.” ([37]).
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| ZII v ZIJ [2018] NSWCATAP 255
Guardianship Division
C Fougere, Principal Member; D Robertson, Senior Member; J Le Breton, General Member
In 2004, ZIJ, a 71 year old woman living in an aged care facility, appointed her two children as her enduring guardians and attorneys. In 2017, however, she revoked the appointments, instead appointing her brother and her de facto partner, ZII.
Following applications by the children, the Tribunal declared that ZIJ did not have the mental capacity to revoke the 2004 appointments, nor to make the 2017 appointments. It appointed the Public Guardian and NSW Trustee and Guardian.
ZII appealed on the following grounds:
1) That the Tribunal misapplied the law by failing to commence its consideration of ZIJ’s capacity from the presumption that she did have capacity;
2) That the conduct of the hearing was unfair; and
3) That the decision was against the weight of the evidence.
Held (dismissing the appeal): (i) although the reasons did not expressly refer to the presumption of capacity, when viewed as a whole they show that the Tribunal did not misapply the presumption in making critical findings in relation to ZIJ’s capacity to make the 2017 appointments ([46]-[47]).
(ii) No denial of procedural fairness was established ([57]), owing, in part, to the lack of evidence put forward by the appellant in support of this ground ([52]-[56]).
(iii) Collectively, the factors identified by the Tribunal as relevant to ZIJ’s mental capacity when executing the documents “[do] not appear to be outside the bounds of the principles outlined in the leading authorities” ([91])
Although there is no statutory definition of “mental capacity”, the concept of “capacity” to execute a document depends on the particular circumstances in which it is executed ([86]-[87], and [88]):
“Whilst it is a matter of fact and degree in each case, errors such as those that existed in this document may not in and of themselves in every case support a finding of incapacity even in the case of an elderly person with some degree of cognitive decline who is nevertheless able to express a consistent and justifiable view as to who he or she does not want to have as their attorney/s.”
Further, there was no basis to find that the Tribunal’s appointments were not in ZIJ’s best interests ([97]).
As to whether the Tribunal failed to have regard to ZIJ’s views, the Appeal Panel found that the Tribunal, correctly, “sought ZIJ’s views but placed no weight on them due to the extent of her cognitive impairment” ([105]).
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| | | Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228
Consumer and Commercial Division - Home Building
Decision of: S Westgarth, Deputy President; G Curtin SC, Senior Member Catchwords: APPEALS – arguments not addressed – failure to accord natural justice – damages – liability under contract – whole contract not in evidence – proper construction of contract – deposit – implied term – repudiation by depositor – forfeiture of deposit BUILDING AND CONSTRUCTION – meaning of “residential building work” in ss 92 and 94 of the Home Building Act 1989 (NSW) – requirements for insurance – issue and cancellation of insurance – argument raised in final submissions – procedural fairness – quantum meruit GUARANTEE AND INDEMNITY – construction and effect |
| Caperleris v Anastasopoulos [2018] NSWCATAP 229
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; R Perrignon, Senior Member Catchwords: RETAIL LEASES – leave to appeal – adequacy of reasons – assessment of evidence – preference of witnesses – construction of lease – breach of conditions and intermediate terms entitling termination – damages arising from breach of covenant to maintain |
| Zonnevylle v Department of Justice [2018] NSWCATAP 230
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Principal Member Catchwords: FEES – non-payment of fees – rules 22 and 25 of the Civil and Administrative Tribunal Rules, 2014 – rejection of Notice of Appeal and dismissal by Tribunal |
| Bartel v Ryan [2018] NSWCATAP 231
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; D Fairlie, Senior Member Catchwords: BUILDING AND CONSTRUCTION – whether Tribunal erred in denying procedural fairness to a party who was legally represented at the hearing |
| Sunrise Pools Australia Pty Ltd v Gregory [2018] NSWCATAP 232
Consumer and Commercial Division - Home Building
Decision of: L Pearson, Principal Member; K Ransome, Senior Member Catchwords: APPEAL – costs – substantive proceedings settled before hearing – discretion to order costs |
| Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233
Consumer and Commercial Division - Home Building
Decision of: Hennessy LCM, Deputy President; G Sarginson, Senior MemberCatchwords: HOME BUILDING – where statutory warranty breached in relation to size of showers – whether damages or rectification appropriate remedy |
| Cahn v The Owners – Strata Plan No 586 [2018] NSWCATAP 234
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member Catchwords: STRATA SCHEMES MANAGEMENT ACT – order for removal of dog – assistance animal within the meaning of the Disability Discrimination Act, 1992 (Cth) – whether concession made that dog was not an assistance animal – competing evidence concerning conduct and management of dog – relevance of subsequent evidence regarding proposed training |
| Cornish v Chief Executive, Office of Local Government [2018] NSWCATAP 235
Occupational Division
Decision of: Hennessy LCM, Deputy President; L Pearson, Principal Member Catchwords: APPEAL – jurisdiction of Appeal Panel – whether internally appealable decision |
| CBL v Southern Cross University [2018] NSWCATAP 236
Administrative and Equal Opportunity Division
Decision of: Hennessy, LCM, Deputy President; Dr J Lucy, Senior Member Catchwords: APPEAL – where applicant applied for review of conduct under Privacy and Personal Information Protection Act 1988 – where alleged conduct was the re-direction of the applicant’s emails to the Legal Unit of the agency – whether that conduct contravenes any information protection principles |
| Orr v NSW Land and Housing Corporation [2018] NSWCATAP 237
Consumer and Commercial Division - Social Housing
Decision of: K Rosser, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – statutory interpretation – meaning of undue hardship – exercise of discretion |
| David Cameron Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; D Robertson, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building jurisdiction of the Tribunal – whether time limits on jurisdiction in s 48K of the Home Building Act apply separately to each claim brought in an application or whether each application constitutes one “building claim” – whether in considering whether to make a work order requiring rectification by the builder it is a relevant consideration that there are defects for which the builder has not been found liable which the home owner will need to employ other builders to rectify WORDS AND PHRASES – “building claim” |
| Johnson v Camilleri Properties Pty Ltd [2018] NSWCATAP 239
Consumer and Commercial Division - Residential Communities
Decision of: S Westgarth, Deputy President; J McAteer, Senior Member Catchwords: APPEAL – extending time for appeal – adequacy of reasons – obligation to identify grounds of appeal |
| Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240
Consumer and Commercial Division - General
Decision of: I Bailey AM SC, Senior Member; G Sarginson, Senior Member Catchwords: APPEAL – costs – special circumstances |
| Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241
Consumer and Commercial Division - Social Housing
Decision of: M Schyvens, Deputy President; D Goldstein, Senior MemberCatchwords: APPEAL – application to restrict publication of decision – principle of open justice – no evidence of confidentiality provided – information sought to be restricted in the public domain – held case not made out – application dismissed |
| P & N NSW Pty Ltd t/as Euro Solar v Park (No 2) [2018] NSWCATAP 242
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior Member Catchwords: CONSUMER CLAIM – order for compensation PRACTICE AND PROCEDURE – new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) |
| The Owners – Strata Plan SP20211 v Rosenthal; Rosenthal v The Owners – Strata Plan SP20211 [2018] NSWCATAP 243
Consumer and Commercial Division - Strata
Decision of: L Pearson, Principal Member; R Perrignon, Senior Member Catchwords: APPEAL – strata scheme – obligation to maintain and repair common property – unauthorised structures – whether lot property or common property – interpretation of special by-laws – whether reversal of onus of proof – damages for breach of statutory duty COSTS – whether special circumstances |
| Five D Pty Ltd v The Owners-Strata Plan No. 79642 [2018] NSWCATAP 244
Consumer and Commercial Division - Commercial
Decision of: R Titterton, Principal Member; D Fairlie, Senior MemberCatchwords: COSTS – special circumstances – disbursements of unrepresented litigant |
| Nowak v Pellicciotti [2018] NSWCATAP 245
Consumer and Commercial Division - Strata
Decision of: R Titterton, Principal Member; D Robertson, Senior Member Catchwords: LAND LAW – strata title – by-laws – disturbing the peaceful occupation of another lot – objective test – replacement of carpet by floating wooden floor – breach of by-laws not established on the evidence |
| Komaromi v Korrin Pty Ltd t/as Harvey Norman Gordon [2018] NSWCATAP 246
Consumer and Commercial Division - General
Decision of: M Harrowell, Principal Member; G Sarginson, Senior Member Catchwords: PRACTICE AND PROCEDURE – appeal lodged out of time – extension of time – original work order performed by respondent |
| Barlow v General Japanese Spares Pty Ltd [2018] NSWCATAP 247
Consumer and Commercial Division - Motor Vehicles
Decision of: S Westgarth, Deputy President; R Perrignon, Senior Member Catchwords: APPEALS – inadequate reasons – fresh evidence SALE OF GOODS – conditions and warranties – terms of express warranty – buyer’s remedies for breach |
| Hanna v BOS Holdings Pty Ltd [2018] NSWCATAP 248
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Charles, Senior MemberCatchwords: APPEAL – real estate agent’s commission – agency agreements – non-compliance with regulations – non-compliance excused and did not disentitle agent to commission – no appealable error demonstrated |
| ZHA v ZGZ [2018] NSWCATAP 249
Guardianship Division
Decision of: M Schyvens, Deputy President; K Rosser, Principal Member; Emeritus Professor P J Foreman, General Member Catchwords: APPEAL – Guardianship Division – review of revocation of enduring power of attorney – extension of time application – length of delay – inadequate explanation of delay – prospects of success – extension of time refused |
| Purcell v Chadwick [2018] NSWCATAP 250
Consumer and Commercial Division - Commercial
Decision of: M Harrowell, Principal Member; G Sarginson, Senior MemberCatchwords: DIVIDING FENCES – jurisdiction to make order – meaning of “sufficient” – relevant considerations – leave to appeal findings of fact (CCD, MV) |
| Thelfro v Merbron Pty Ltd t/as Burraneer Bay Marina [2018] NSWCATAP 251
Consumer and Commercial Division - Motor Vehicles
Decision of: M Harrowell, Principal Member; G Sarginson, Senior MemberCatchwords: CONSUMER CLAIM – jurisdiction of Tribunal to determine a “consumer claim” – meaning of “services” and “supply” – consumer/ purchaser receiving services from agent employed by a vendor to advertise a boat for private sale |
| ZEJ v ZEL [2018] NSWCATAP 252
Guardianship Division
Decision of: A Britton, Principal Member; J Currie, Senior Member; L Porter, General Member Catchwords: APPEAL – nature of internal appeal to the Appeal Panel under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – identification of grounds of appeal – no evidence – whether decision “legally unreasonable” APPEAL – general principles governing grant of leave to appeal |
| Davies-Evans v MacCulloch [2018] NSWCATAP 253
Consumer and Commercial Division - Tenancy
Decision of: A Coleman SC, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – residential tenancies – where appellant tenant claimed rent reduction having regard to the reduction or withdrawal by the landlord of services or facilities, due to mould in premises – whether Tribunal erred in stating that tenant had to prove that the mould was the landlord’s fault – whether Tribunal erred in failing to consider whether services or facilities were reduced, not merely withdrawn |
| Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254
Administrative and Equal Opportunity Division
Decision of: Hennessy LCM, Deputy President; J Currie, Senior MemberCatchwords: APPEAL – administrative law – access to government information – where residents action group requested access to information in documents relating to the Newcastle 500 Supercars Event – whether Tribunal had erred in providing access to certain information – re-determination on merits – whether there is an overriding public interest against disclosure of information |
| ZII v ZIJ [2018] NSWCATAP 255
Guardianship Division
Decision of: C Fougere, Principal Member; D Robertson, Senior Member; J Le Breton, General MemberCatchwords: APPEAL – Guardianship Division – review of revocation of enduring power of attorney – review of making of enduring power of attorney – review of enduring guardianship – presumption of capacity – whether or not principal had mental capacity to revoke and/or make enduring power of attorney – fact finding not undertaken in unorthodox manner – no denial of procedural fairness – appeal dismissed |
| The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; J Currie, Senior Member Catchwords: COSTS – Rule 38(2)(b) – meaning of the expression “the amount claimed or in dispute is more than $30,000” – scope of operation of the rule – special circumstances – challenge to finding that claimant had arguable case |
| Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257
Consumer and Commercial Division - Social Housing
Decision of: G Curtin SC, Senior Member; S Thode, Senior Member Catchwords: LEASES AND TENANCIES – social housing tenancy – drug offence – termination order – disability exception – proof – onus of proof – unchallenged evidence – overlooked evidence – inadequacy of reasons |
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