| | | | | NCAT Appeal Decisions Digest October 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 9 and 31 October 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: - Shih v The Owners – Strata Plan No 87879 [2019] NSWCATAP 263
- Wootten v Godfrey [2019] NSWCATAP 255
- ZW2 Pty Ltd trading as Lake Munmorah Residential Resort v Welch [2019] NSWCATAP 260
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| Shih v The Owners – Strata Plan No 87879 [2019] NSWCATAP 263
Consumer and Commercial Division - Strata
The Hon F Marks, Principal Member; K Ransome, Senior Member
This appeal involved a claim by the appellants, who were lot owners in a strata plan, against the respondent owners corporation in respect of alleged breaches by the respondent of certain duties under the Strata Schemes Management Act 2015 (NSW) (SSMA). The breaches related to “water penetration issues” in the appellants’ lot which led to the tenants of the lot ceasing rent payments and moving out, causing financial loss to the appellants. The appellants sought an order for damages under s 106(5) of the SSMA for breach of the respondent’s statutory duty under s 106(1) (being to properly maintain the property and keep it in a state of good and serviceable repair). At first instance, the Tribunal proceeded on the basis that it had jurisdiction to award damages under s 106(5), and ordered that the respondent pay the appellants $542.86 (a reduced amount based, amongst other things, on the appellants’ failure to mitigate their loss and on the deferral of the s 106(1) duty under s 106(4) by the respondent taking action against the builder of the strata scheme).
An issue that arose during the Appeal Panel hearing was whether the Tribunal has the power, under s 232 of the SSMA (a broad, but not unlimited, general order-making power), to order an award of damages under s 106(5) for breach of either of the statutory duties in ss 106(1) and (2).
Held (allowing the appeal):
(i) The Appeal Panel allowed the appeal in a “technical sense”, but “not for the reasons advanced by the appellants, and with consequences adverse to their interests in a direct sense, but […] not necessarily fatal to a claim for compensation” ([101]).
(ii) The Appeal Panel found that the Tribunal does not have the power to make an order of damages under s 106(5) of the SSMA. In doing so, it expressly rejected the position taken by a former (differently constituted) Appeal Panel in The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 (Shum), which found, as a matter of statutory construction, that the Tribunal did have such a power ([16], [71]).
(iii) In coming to its conclusion, this Appeal Panel:
a. noted that s 106, “while it provides for the making of an award of damages, does not specify which body can make that order” – that is, it does not expressly confer any jurisdiction on the Tribunal ([15], [52], [61]);
b. considered various other provisions of the SSMA which expressly confer jurisdiction on the Tribunal to make specified orders, including monetary orders ([50]-[60]);
c. considered various other provisions of the SSMA which do not expressly empower the Tribunal to make orders requiring the payment of money ([61]-[64]);
d. reasoned that, in such circumstances, it may be inferred that the legislature did not intend to confer jurisdiction on the Tribunal to make an order, and that “[b]y analogy, the same approach should be adopted” in respect of s 106 ([61]);
e. agreed with the respondent’s submissions that “the determination of a common law claim for damages, albeit based on a statutory cause of action, is in general terms the province of the courts”, and that the language used in s 106 supports such a limitation ([66]-[71]); and
f. found it “impermissible to import into the general power in section 232 a specific power such as that exercisable under section 106(5)” ([71]).
(iv) In discussing the introduction of s 106(5) as a provision of the SSMA in 2015, and the omission of a provision similar to s 38 of the former SSMA, which previously excluded an adjudicator from making any orders for payment of damages, this Appeal Panel found ([47]):
“The decision to create a statutory cause of action giving rise to a claim for damages where none previously existed is not necessarily indicative that a current decision-maker who replaces a decision maker who previously did not have the power to award damages will be given that power when the right to claim damages is created. It is still necessary to identify a power given to this Tribunal explicitly or by necessary implication as envisaged by sections 28 and 29 of the [Civil and Administrative Tribunal Act].” (emphasis added)
(v) Although this Appeal Panel found that Tribunal does not have jurisdiction to make an award of damages under s 106(5), it expressed the “preliminary view” that the Tribunal may possess jurisdiction to instead “make an award of compensation in favour of the applicants under section 232” ([49], [72], [83]-[90]).
(vi) This Appeal Panel was of the opinion that the failure to include any provision within s 232 in the nature of s 138(3)(d) of the former SSMA is a “powerful indication” that the Tribunal is “empowered within its dispute resolution powers provided by section 232 to make a money order which may include an order an order for compensation for loss, provided that such award is an appropriate and reasonable means of resolving the dispute” ([86]).
(vii) Importantly, this Appeal Panel noted that it did not consider there to be any inconsistency between this finding and its finding that the Tribunal lacks jurisdiction to award damages under s 106(5). In doing so, it emphasised that the “creation of a right to bring an action for damages is a matter relevantly separate from and distinguishable from a broad power to settle a dispute or a complaint”, and that such a right is, again, “more consistent with the jurisdiction and power as exercised by courts” ([88]).
(viii) Accordingly, this Appeal Panel emphasised that any right to seek an order of compensation from the Tribunal under s 232 is independent of and concurrent with an entitlement to seek damages, in a competent court, under s 106(5) ([90]).
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| Wootten v Godfrey [2019] NSWCATAP 255
Consumer and Commercial Division - Tenancy
A Britton, Principal Member; G Burton SC, Senior Member
The appellant, Mr Wootten, was the landlord of premises previously leased to the respondents, Ms and Mr Godfrey. The respondents vacated the premises in September 2018. The appellant subsequently applied to the Tribunal for an order for compensation, on the basis that the respondents had left the premises in a state of damage and disrepair for which they were liable ([1]). At first instance, the Tribunal dismissed all but one of the appellant’s claims, excepting a claim for two days of outstanding rent. The appellant sought leave to appeal this decision, on the ground that the decision was “not fair and equitable”, and was “against the weight of evidence” ([2]).
The grounds of appeal were that the appellant was denied procedural fairness because ([12]):
- the Tribunal Member’s conduct gave rise to a reasonable apprehension of bias;
- the Tribunal Member was biased against the appellant; and
- the Tribunal Member failed to give the appellant a reasonable opportunity to present his case.
Held (refusing leave and dismissing the appeal):
Actual bias (i) The Appeal Panel found that the appellant “failed to discharge the heavy onus to establish a claim of actual bias” ([43]).
(ii) No recording of the hearing was in evidence. The appellant’s claim that the Tribunal Member used a “belittling and sarcastic tone of voice”, being contradicted by the respondents, therefore could not be accepted ([42]).
(iii) Further, the comments made by the Tribunal Member, which were evidenced by the hearing transcript (see examples at (vi) below), were insufficient to support the contention that the Tribunal Member was partial to the respondents and ill-disposed towards the appellant, and thus unable to bring an impartial mind to the determination ([43]).
Apprehended bias
(iv) In deciding whether the claim of apprehended bias was established, the Appeal Panel set out the relevant test as follows ([44]):
“The question to be posed is, when the transcript is considered in its entirety, giving particular regard to the extracts on which Mr Wootten relies, can it be concluded that a fair-minded lay observer with knowledge of the nature of the decision, the context in which it was made and the circumstances leading to that decision, might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the Application or that his mind was not open to persuasion. The relevant enquiry is not whether the hypothetical fair-minded observer might have believed that the Tribunal Member might not have brought an impartial mind to the determination of the Application but rather whether they might have apprehended that to be the case.” (bold emphasis added)
(v) The Appeal Panel found that the “inescapable inference” to be drawn from the transcript was that the Tribunal Member was frustrated and annoyed by the manner in which the appellant presented his case. This appeared to be for a variety of reasons, including the appellant’s persistence with claims which the Tribunal Member thought had little evidentiary basis, his repetition of submissions already rejected by the Tribunal Member, and his failure to follow “[c]lear and standard directions” made by the Tribunal Member ([47]-[49]).
(vi) In particular, the Appeal Panel pointed to examples in the transcript, indicated by the appellant, where the Tribunal Member made the following comments ([47]):
a. “Well, I don't care what you do with [the agents], I'm only interested at the moment, with what happens between you and the tenant.”
b. “I've only had 49 years as a Barrister and I know what courts expect of the behaviour of parties, including Barristers in those circumstances, and because I have a low tolerance, yes write it down, am I speaking slowly enough for you?”
c. “I am not sure why you believe that this whole tribunal and the hearing operates for your convenience whether you are right or wrong in law but you seem to have that view.”
d. “[C]an you understand that the time I'm going to give you to go slowly and painfully through each of these items is now becoming more and more limited?”
(vii) It was acknowledged that the Tribunal Member’s comments were in the context of “attempting to perform his duty to act with procedural fairness in seeking to understand Mr Wootten’s case and to test it with Mr Wootten”, and conceded that this was a difficult task ([51]).
(viii) The Appeal Panel also noted that “such expression of frustration and irritation can give an unfortunate impression” ([52]), and concluded that aspects of the Tribunal Member’s conduct “might have left the fair-minded lay observer with a ‘vague sense of unease or disquiet’” ([55]) (emphasis added).
(ix) However, none of the examples cited by the appellant were seen, individually or cumulatively, as capable of giving rise to a reasonable apprehension of bias. The Appeal Panel was “not persuaded that the fair-minded lay observer might reasonably apprehend that the Tribunal Member might not bring an impartial mind to the determination of the merits of the Application” ([53]-[56]).
Reasonable opportunity to be heard
(x) The Appeal Panel also rejected the appellant’s submission that he was not given a reasonable opportunity to put his case. This contention depended on the appellant’s claims that ([57]):
a. the Tribunal Member frequently interrupted the appellant, leaving him with insufficient time; and
b. the Tribunal Member’s decision to impose a 90 minute time limit on the appellant to finalise his case was “demonstrably unreasonable”.
(xi) The Appeal Panel found that, in circumstances where the appellant’s evidence was in a state of relative disorder, and the appellant bore the onus of proof against the respondents, the Tribunal Member’s conduct in questioning the appellant about aspects of his claim was “not only permissible but also necessary to discharge the statutory obligation to take such steps as reasonably practicable to ensure Mr Wootten had a reasonable opportunity to be heard and to ensure that all relevant material was disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue” (ss 38(5)(c) and 38(6)(a), Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)).
(xii) The Tribunal Member’s decision to impose a time limit was also permitted by s 38(6)(c) of the NCAT Act, having regard to the requirement that the appellant be given a reasonable opportunity to be heard (s 38(5)(c)), and that the Tribunal facilitate the “just, quick and cheap resolution of the real issues in the proceedings” (s 36(1)) . In the circumstances, the decision was “unremarkable and could not be said to amount to a failure to ensure that Mr Wootten had a reasonable opportunity to be heard” ([62]). |
| ZW2 Pty Ltd trading as Lake Munmorah Residential Resort v Welch [2019] NSWCATAP 260
Consumer and Commercial Division - Residential Communities
M Harrowell, Principal Member; J McAteer, Senior Member
The respondents own a home on a site operated by the appellant, known as the Lake Munmorah Residential Resort (the Resort) ([1]). They wanted to sell their home, and had discussions with two sets of prospective purchasers – the Thompsons and the Denises. However, the respondents had previously carried out work on their home, and there were outstanding issues concerning whether or not the work complied with various local government and building regulations ([6]-[7]).
Under the Residential (Land Lease) Communities Act 2013 (NSW) (the RLLC Act), a purchaser of a site at the Resort is required to either take assignment of an existing site agreement, or enter a new site agreement with the operator. In the site agreement offered to the Thompsons, the appellant included additional terms requiring that the property be brought into compliance with the relevant regulations ([8]). The Thompsons subsequently decided not to go through with the proposed sale. The respondents applied to the Tribunal for compensation on the basis that the appellant had interfered with the proposed sale, in contravention of s 107 of the RLLC Act ([2]).
At first instance, the Tribunal decided in favour of the respondents. It made orders prohibiting the appellant from interfering further in the sale, and requiring the appellant to pay compensation to the respondents (including by refunding site fees paid by the respondents after the sale would otherwise have occurred, abating further site fees up to the date of completion of a sale to another prospective purchaser, and compensating the respondents for loss of interest on the proceeds of sale up to that date) ([3]).
In its appeal to the Appeal Panel, the appellant submitted, in effect:
- that disclosing to a prospective purchaser the fact of non-compliance with local regulations, and requiring compliance with those regulations as part of a new site agreement, is not conduct amounting to interference within the meaning of s 107 unless the requirements are unreasonable (which in these circumstances they were not) ([13])
- that, even if the conduct could constitute a contravention of s 107, it was clear from the evidence of the prospective purchasers, the Thompsons, that the requirement to sign the agreement was not the cause of the sale not proceeding. Rather, the appellant submitted that the Thompsons withdrew from the sale because they did not like the appellant’s staff ([14]);
- that the respondents failed to mitigate the loss and damage they suffered, which is a pre-requisite for an order by the Tribunal under s 157(4) of the RLLC Act, because the respondents could have offered a lower sale price, assigned their existing agreement to the Thompsons, or taken steps themselves to comply with regulatory requirements ([16]); and
- that the orders were not fair and reasonable ([18]).
Held (allowing the appeal):
Conduct amounting to interference with right to sell home
(i) The Appeal Panel rejected the appellant’s submission that its conduct of inserting a term in a new site agreement could only be found to constitute interference within the meaning of s 107 of the RLLC Act if that term was unreasonable ([36]-[37]).
(ii) Rather, it is clear from the wording of s 107(2)(d) that interference arises under s 107 when an operator takes action to require a homeowner to comply with requirements under the Local Government Act 1993 (NSW) only after becoming aware that the homeowner is seeking to sell his or her home ([39]).
(iii) Interference of this type can occur where an operator expressly requires a homeowner to carry out repairs, and/or indicates it will not consent to an assignment of an existing site agreement until such time as relevant work is carried out. It also includes “indirect action”, such as an operator including a provision requiring work to be carried out as a condition of entering a new site agreement. In this regard, the vice the legislature was intending to prevent in the RLLC Act is the same – that is, an operator taking steps to compel a homeowner to carry out work as a condition of allowing a sale ([40]-[42]).
(iv) Consequently, the Appeal Panel found the Tribunal was correct to conclude that interference had occurred. On this basis, the order made at first instance restraining the appellant from further interference was properly made (although it “lack[ed] precision”) ([46]-[47]).
Whether compensation due
(v) In order to make an award for compensation, it was necessary for the Tribunal to consider whether the contravening conduct of the appellant caused the loss and damage claimed by the respondents (i.e. to find that the interference caused the loss of the sale). The Appeal Panel found that such causation was not supported by the evidence before the Tribunal ([48]-[49]).
(vi) The Thompsons did not give oral evidence before the Tribunal. However, the written evidence provided supported a conclusion that their reason for not proceeding with the sale was that they disliked the management staff of the appellant, not the terms of the agreement proposed. To the contrary, the evidence suggested the Thompsons were happy to carry out any works in order to comply with council requirements ([52]-[56]).
(vii) This was further supported by the evidence of Ms Nakkan, the respondents’ agent, and Ms Cork, an employee of the appellant who spoke with the Thompsons ([58], [61]).
(viii) The Appeal Panel further noted that the Denises, the other prospective purchasers, were still in the “discussion stage regarding offers” with the respondents at the time of the first instance hearing. The Denises were aware of the “compliance issues” relating to the site, and advised the agent that they required the respondents to rectify those issues if they were to proceed with the purchase. However, this request was not made because of any clause like that included in the Thompsons’ proposed agreement, but rather because the Denises themselves wanted the respondents, as vendors, to make good any defects prior to the sale ([64]-[66]).
(ix) On this basis, the Appeal Panel found that the Tribunal erred in concluding the identified interference caused either the Thompsons or the Denises to withdraw from the purchase ([62], [67]). Accordingly, it was satisfied that the appellant may have suffered a substantial miscarriage of justice, and that the orders for compensation and rent abatement made at first instance should be dismissed ([63]).
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| | | Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250
Consumer and Commercial Division - Strata
Decision of: G K Burton SC, Senior Member; D Goldstein, Senior MemberCatchwords: COSTS – do ordinary rules apply to costs of appeal when not applicable in primary proceedings – special circumstances – appeal against non-party costs orders |
| Bolton v Grose [2019] NSWCATAP 251
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; T Simon, Senior MemberCatchwords: APPEAL – dividing fence, procedural fairness, jurisdiction, sufficiency of fence, development application, leave to appeal, no issue of principle |
| Natural Solar Pty Ltd v Lowe [2019] NSWCATAP 252
Consumer and Commercial Division
Decision of: P Durack SC, Senior Member; G Sarginson, Senior MemberCatchwords: CONSUMER LAW – whether decision fair and equitable or against the weight of the evidence – new evidence reasonably available at time of hearing – no appellable error shown |
| Sunrise Property Holdings Pty Ltd v Gregg [2019] NSWCATAP 253
Consumer and Commercial Division - Residential Communitites
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior MemberCatchwords: LANDLORD AND TENANT – Residential (Land Lease) Communities Act – increase in site fees – lack of evidence justifying increase – no point of principle |
| Vital Capital Investment Pty Ltd v Hoffmann [2019] NSWCATAP 254
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEALS – procedure – claim that never received notice of hearing to determine the matter at first instance – procedural fairness – conflicting accounts about receipt of notice |
| Wootten v Godfrey [2019] NSWCATAP 255
Consumer and Commercial Division - Tenancy
Decision of: A Britton, Principal Member; G Burton SC, Senior MemberCatchwords: PROCEDURAL FAIRNESS — bias — actual bias — principles
PROCEDURAL FAIRNESS — bias — apprehended bias — principles
PROCEDURAL FAIRNESS — hearing rule —principles
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| Schrell v NSW Land and Housing Corporation [2019] NSWCATAP 256
Consumer and Commercial Division - Social Housing
Decision of: M Harrowell, Deputy President; A Boxall, Senior MemberCatchwords: LANDLORD AND TENANT – claim for compensation and rent reduction – no error is shown in award |
| New South Wales Trustee and Guardian v Clark [2019] NSWCATAP 257
Administrative and Equal Opportunity Division
Decision of: Cole DCJ, Deputy President; L Pearson, Principal MemberCatchwords: APPEAL – access to information – whether information sought “excluded information” |
| Dyldam Developments Pty Ltd v Mewing (No 2) [2019] NSWCATAP 258
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Deputy President; F Corsaro SC, Senior MemberCatchwords: COSTS – transfer of proceedings to a court – time to assess costs of unsuccessful appeal |
| Blue Haven Pools South Pty Ltd v Maloney [2019] NSWCATAP 259
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; J Kearney, Senior MemberCatchwords: APPEAL – whether permitted to raise new issue on appeal
CONTRACT – construction of contract – whether capricious, unreasonable, inconvenient or unjust
CONTRACT – repudiation – whether retracted by conduct
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| ZW2 Pty Ltd trading as Lake Munmorah Residential Resort v Welch [2019] NSWCATAP 260
Consumer and Commercial Division - Residential Communities
Decision of: M Harrowell, Principal Member; J McAteer, Senior MemberCatchwords: RESIDENTIAL COMMUNITIES – interference with sale of home by residents – order preventing inclusion of term in proposed site agreement requiring compliance with local government regulations and building requirements – claim for compensation – failure to establish contravening conduct caused loss of sale |
| Ali v Revesby Metals Pty Ltd [2019] NSWCATAP 261
Consumer and Commercial Division - Motor Vehicles
Decision of: A P Coleman SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL – consumer guarantees - no substantial miscarriage of justice – no point of principle |
| Seremetis v Department of Communities and Justice [2019] NSWCATAP 262
Administrative and Equal Opportunity Division
Decision of: Dr R Dubler SC, Senior Member; Dr J Lucy, Senior MemberCatchwords: ADMINISTRATIVE LAW – government information – CCTV footage of interior of corrections centre – public interest test – balancing exercise – nature of discretionary task – whether tribunal erred in law |
| Shih v The Owners - Strata Plan No 87879 [2019] NSWCATAP 263
Consumer and Commercial Division - Strata
Decision of: The Hon F Marks, Principal Member; K Ransome, Senior MemberCatchwords: Strata Title – appeal from order of Tribunal making an award of damages under sec 106(5) of the Strata Schemes Management Act 2015 – held Tribunal lacked jurisdiction and power to make an award of damages
Strata Title – on appeal held Tribunal arguably may have power to make order for payment of compensation under section 232 of the Strata Schemes Management Act – Proceedings stood over with liberty to apply |
| Craig v Chief Commissioner of State Revenue [2019] NSWCATAP 264
Administrative and Equal Opportunity Division
Decision of: M Harrowell, Deputy President; R Hamilton SC, Senior MemberCatchwords: TAXES AND DUTIES – Land Tax Management Act, 1956 (NSW) – primary production exemption – exemption applicable to land rezoned from rural land – significant and substantial commercial purpose or character – applicable principles – determination of relevant factual issues – no error shown |
| Frampton v The Owners – Strata Plan No 35012 [2019] NSWCATAP 265
Consumer and Commercial Division - Strata
Decision of: G K Burton SC, Senior Member; D Goldstein, Senior MemberCatchwords: COSTS – Existence of special circumstances |
| | 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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