| | | | | NCAT Appeal Decisions Digest September 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 September 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: - Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204, which looked at the doctrines of res judicata and issue estoppel;
- McEwan v Port Stephens Council [2018] NSWCATAP 211, regarding disclosure of “open access information” under the GIPA Act;
- Sheiman v Carpet Solutions [2018] NSWCATAP 214, concerning the admissibility of fresh evidence on appeal;
- Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215, which considered whether an appeal decision should be set aside as the applicant was absent from the hearing;
- Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221, involving an application to suppress an appeal decision on grounds of harm to health and reputation; and
- Klewer v Roberts [2018] NSWCATAP 225, in which a hearing miscarried after the parties were sent to conciliation, despite evidence to suggest that such course was inappropriate.
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| Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204
Consumer and Commercial Division - Strata
Decision of: R Titterton, Principal Member; G Sarginson, Senior Member
The respondent Owners Corporation obtained orders, under s 149(1)(b) of the Strata Schemes Management Act 2015 (NSW), repealing certain by-laws, after the appellants (9 of the 73 lot owners) “unreasonably refused” to consent to the repeal.
On appeal, the key issues were i) whether the doctrines of res judicata and issue estoppel bind the Tribunal from hearing a strata dispute in circumstances where an adjudicator has previously determined a similar issue, and ii) adequacy of reasons.
Relevantly, in 2006, an adjudicator had dismissed an application, under different legislation, from the Owners Corporation to repeal the by-laws. 17 of the 73 lot owners were respondents.
Held (allowing the appeal): (i) neither res judicata nor issue estoppel applied ([21]).
Res judicata is explained in Halsburys (online) at [190-45]ff ([18]):
“(1) res judicata is the principle of law which prohibits a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties or their privies litigating in the same capacity; if made out, res judicata is a complete bar to the claim;
(2) …[it] is founded on the necessity of avoiding re-agitation of issues and of preventing the raising of issues which could have been … decided in earlier litigation;
(3) …[it] is not restricted to courts of record. It applies to judicial decisions of a final nature of any court or tribunal…;
(4) …it must be shown that the cause of action in the later proceedings is the same as that which was litigated in the former proceedings…;
(5) …[it] applies where there is an identity of parties. This occurs where the parties are literally the same or there is privity of interest or capacity. …"
Issue estoppel is the principle that “a final judgment by a competent tribunal forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision” ([19]):
“For the doctrine … to apply in a second set of proceedings:
(1) the same question must have been decided;
(2) the judicial decision which is said to create the estoppel was final; and
(3) the parties … were the same persons as the parties to the proceedings in which the estoppel is raised …"
Unlike res judicata, “the plea of issue estoppel may succeed although the causes of action in the two cases are entirely different (see Halsburys at [190-100]).” ([20])
Here, there was “no commonality of parties” – with 17 lot owners appearing before the adjudicator, and 9 before the Tribunal ([22]-[23]); and the adjudicator’s decision did not determine the issue before the Tribunal – as it involved a different Act ([24]-[25]), and “did not involve any consideration of… unreasonableness” ([30]).
(ii) The reasons failed to take into account key submissions ([46]-[48]), amounting to “a denial of procedural fairness and a constructive failure to exercise jurisdiction.” ([51]) Relevantly, the Tribunal did not “deal with” or “grapple with” those submissions, or otherwise explain why it rejected them ([47]).
As was observed in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [32], “fundamentally, the reasons, be they oral or written, must do justice to the issues posed by the parties’ cases.” ([54]) That did not occur here ([55]).
The appropriate course “is that the matter be remitted to the Tribunal for redetermination by another Member.” ([59])
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| McEwan v Port Stephens Council [2018] NSWCATAP 211
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; S Higgins, Senior Member
The appellant sought to obtain access, under the Government Information (Public Access) Act 2009 (GIPA Act), to objections made to a development application in respect of his previous home. In affirming the Council’s decision not to provide access, the Tribunal noted that disclosure could reasonably be expected to:
1) “contravene a Health Privacy Principle under the Health Records and Information Privacy Act 2002” (cl 3(b) in Table 14 of the GIPA Act); or
2) “expose a person to a risk of harm or of serious harassment or serious intimidation” (cl 3(f) in Table 14 of the GIPA Act).
On appeal, it was noted that “[b]ecause the information was “open access information”, the Council was under a statutory obligation to make such information publicly available unless there was an overriding public interest against disclosure of the information: s 6(1) of the GIPA Act.” ([10])
Held (allowing the appeal): (i) the Tribunal erred in law in failing to give sufficient weight to the open access feature of the information sought ([42]-[45]):
“because the information in issue was open access information the Tribunal needed to start with the position that this was an important factor in favour of disclosure which was additional to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in s 12(1) of the GIPA Act. In our view such an approach is necessary in order to give meaningful effect to the mandatory release requirement expressed in s 6.”
The Tribunal also erred in finding that disclosing the objectors’ opinions amounted to disclosure of “personal information” ([43]):
“such an assessment was at odds with the important value to be attributed to the disclosure of submissions on development applications which is implicit in the prescription of such submissions as open access information in Schedule 1 of the [GIPA Act].”
(ii) The Tribunal gave inadequate reasons that cl 3(f) had been established, by failing to refer to material evidence that went against its stated conclusion ([46] and [48]):
“in failing to address this competing material it went about the fact finding process in a way that was likely to produce an unfair result …the Tribunal’s decision should be reviewed.”
(iii) Regarding cl 3(b), the references to health information are “expressed in very general terms” and “make up a very small part” of the documents sought: “It would be a simple matter to have these parts redacted if … necessary or desirable.” ([56])
The Tribunal’s failure to refer to these specifics in its reasons was either ([57]):
“a failure to provide adequate reasons or a failure to consider the material before it and, hence, an error of law in failing to decide what was the correct and preferable decision having regard to the material before the Tribunal; see s 63(1) of the ADR Act and Bushell v Repatriation Commissioner [1992] 175 CLR 408 at 424 – 425 per Brennan J.”
The case was remitted to a differently constituted Tribunal for redetermination ([61]).
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| Sheiman v Carpet Solutions [2018] NSWCATAP 214
Consumer and Commercial Division - General
Decision of: K Rosser, Principal Member; R Perrignon, Senior Member
This was an appeal from a decision dismissing Dr Sheiman’s application to renew proceedings for rectification of defective bamboo flooring. He claimed that the decision was not fair and equitable, against the weight of evidence, and that new evidence was now available that was not reasonably available at the hearing.
Held (dismissing the appeal): (i) the application to admit fresh evidence was declined, as Dr Sheiman failed to demonstrate why the evidence was not reasonably available at or before the hearing ([20]).
(ii) In declining to renew the proceedings, it was open to the Tribunal to prefer the evidence of expert witness, Mr Ji, “by reason of his independence and expertise”, to that of Dr Sheiman ([23]).
Under cl 8(2) of Sch 4 of the NCAT Act, Dr Sheiman could renew the proceedings if he could demonstrate non-compliance with the rectification orders ([22]). The Tribunal was not satisfied that he had discharged his onus of proof, given Mr Ji’s evidence that the rectification works had been satisfactorily completed ([23]).
(iii) As the appeal was “from a finding of fact – namely, from the Tribunal’s finding that it was not satisfied there had been non-compliance with the rectification orders”, leave to appeal was required: s 80(2)(b). For the reasons given above, the matters in cl 12(1)(c) of Sch 4 were not made out, and leave was refused ([24]-[29], [30]).
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| Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215
Consumer and Commercial Division - Tenancy
Decision of: The Hon J Boland ADCJ Deputy President; The Hon F Marks Principal Member
Ms Kostov sought to set aside an Appeal Panel decision, which dismissed her appeal from an earlier Tribunal decision terminating a residential tenancy, on the basis that she was absent at the hearing of the appeal.
To succeed in having the appeal decision set aside, under reg 9(1)(b) of the NCAT Regulation, Ms Kostov had to show that the decision was made in her absence, and that her absence resulted in her case not being adequately put to the Appeal Panel.
The Appeal Panel noted that this application was not an appeal, as s 32(3)(a) of the NCAT Act provides that the Appeal Panel’s jurisdiction “does not extend to … any decision of an Appeal Panel” ([8]).
Held (dismissing the application): (i) Ms Kostov did attend the hearing, but behaved “in a most inappropriate manner” and then left “on her own initiative” ([36]). While the cause of her departure was unclear, its effect was not – her absence did not result in in her case not being put adequately to the Appeal Panel ([37]).
In Allesch v Maunz [2000] HCA 40, the High Court “held that a hearing conducted in the absence of a party would, in appropriate circumstances, constitute a miscarriage of justice.” ([34]) In the circumstances, the applicant’s case was adequately put before the Appeal Panel below ([37]-[38]):
1) “the Members carefully and closely examined all of the evidentiary material which had been put before them by the applicant”;
2) “even if the applicant had remained in the hearing …it is inescapable that the applicant was in arrears in the payment of rent at the time of the initial hearing”; and
3) “the applicant had been required by directions and orders of this Tribunal to file and serve all evidentiary material upon which she wished to rely”.
Accordingly, the Appeal Panel could not be satisfied that, even if the applicant had been present for the whole hearing, any different conclusion would have been reached ([40]).
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| Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221
Consumer and Commercial Division - Tenancy
Decision of:The Hon J Boland ADCJ Deputy President; The Hon F Marks Principal Member
Ms Kostov sought to suppress the Appeal Panel’s decision in relation to her matter above, on the basis, primarily, of harm to her health and reputation resulting from the proceedings and the risk of publicity following publication of the reasons.
The power to restrict disclosures concerning proceedings is set out in s 64 of the NCAT Act, but must be read in the context of s 49, that proceedings be open to the public ([8]-[9]). Further guidance is found in s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which permits courts to make suppression orders in circumstances including “to prevent prejudice to the proper administration of justice”, and “to protect the safety of any person”.
Held (dismissing the application): (i) the applicant’s personal circumstances, although “unfortunate” ([21]), do not outweigh the importance of open justice ([10]):
“In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice.”
Without medical evidence on the adverse effect of publication “on her health, reputation and well-being” ([14]-[15]), “the highest [the Tribunal could] put the applicant’s case is that she would feel discomfited and extremely upset…” ([16]). Such reactions “are part and parcel of the consequences of becoming involved in litigation.” ([18]) Making orders under s 64 could likewise not be justified on the basis of confidentiality in the present case ([18]-[21]).
Importantly, there were “compelling reasons” to publish the decision and reasons ([24]): the respondent is a not-for-profit women’s refuge, which had obtained an eviction order against Ms Kostov. Despite this, she had refused to vacate the premises and threatened court proceedings. This being so, it was found that ([24]):
“Publication of our decision will assist the respondent in bringing this sad episode to a conclusion, and to enable it to use the subject premises for the assistance of a woman in need.”
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| Klewer v Roberts [2018] NSWCATAP 225
Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; T Simon, Senior Member
After orders were made terminating a residential tenancy, the appellant landlord sought payment from the respondent, his former tenant, in respect of rental arrears, recovery of costs paid to the Sheriff for repossession, and various other costs.
The Member suggested the parties try conciliation, despite evidence of (a) an AVO prohibiting the respondent from speaking to the appellant except through a lawyer, and (b) a letter stating that the appellant suffers from epilepsy, which might be aggravated by stress. The appellant refused to conciliate, and left the hearing.
Noting the appellant’s failure to press his claims, or present evidence to support them, the Member dismissed the application.
The appeal focused on the manner in which the Member conducted the proceedings and the merits of the appellant’s claim.
Held (allowing the appeal): (i) the hearing miscarried – in light of the AVO and medical note, the Member’s suggestion of conciliation was “unwise” and the appellant was entitled to leave the hearing ([20]-[21]). In the circumstances, the Member should have adjourned the proceedings, rather than dismiss them ([23]).
(ii) The Member’s assessment of the quantum of the outstanding claims was arguably incorrect ([20]). Whether the appellant could prove rental arrears, without a written record, is “a hurdle that the appellant will have to face. But he was denied the opportunity to do so, and this also caused the proceedings to miscarry.” ([24])
The balance of the proceedings was remitted for further hearing ([25]).
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| | | Mason v Hyland [2018] NSWCATAP 203
Consumer and Commercial Division - General
Decision of: R Titterton, Principal Member; R Perrignon, Senior MemberCatchwords: APPEALS – where Tribunal decision made in absence of party – where party does not pursue application to set aside the decision – no question of principle |
| Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204
Consumer and Commercial Division - Strata
Decision of: R Titterton, Principal Member; G Sarginson, Senior MemberCatchwords: APPEALS – adequacy of reasons – whether the Civil and Administrative Tribunal failed to take into account “key” considerations raised by the appellant at the first hearing RES JUDICATA – whether the doctrines of res judicata and issue estoppel bind the Consumer and Commercial Division of the Civil and Administrative Tribunal from hearing a strata schemes dispute in circumstances where a Strata Schemes Adjudicator had determined a similar issue in 2006 |
| Bajic v Paraskevopoulos [2018] NSWCATAP 205
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; D Robertson, Senior MemberCatchwords: COSTS – Calderbank Offer |
| Hollins v NSW Land and Housing Corporation [2018] NSWCATAP 206
Consumer and Commercial Division - Tenancy
Decision of: R Titterton, Principal Member Catchwords: PRACTICE AND PROCEDURE – stay of order for possession pending appeal – where residential tenancy agreement has been terminated for breach of s 92 of the Residential Tenancies Act 2010, namely where the tenant has seriously or persistently threatened or abused the landlord or its agents and contractors |
| Charitable Islamic Association of Beirut City Incorporated v The Owners Strata Plan No 75506 [2018] NSWCATAP 207
Consumer and Commercial Division - Strata
Decision of: S Higgins, Senior Member; S Thode, Senior MemberCatchwords: APPEAL – whether Tribunal below erred in the exercise of its discretion to refuse an adjournment application made at the commencement of the hearing below – no error of the exercise of discretion established |
| Rekrut v Champion Homes Sales Pty Ltd (No 2) [2018] NSWCATAP 208
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; S Higgins, Senior MemberCatchwords: COSTS – indemnity costs |
| Abdel-Messih v Wang (No 2) [2018] NSWCATAP 209
Consumer and Commercial Division - Tenancy
Decision of: G Sarginson, Senior MemberCatchwords: COSTS – special circumstances – whether established |
| Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; D Fairlie, Senior MemberCatchwords: BUILDING AND CONSTRUCTION – whether the Tribunal erred in not making a work order pursuant to s 48MA of the Home Building Act – whether the Tribunal erred in allowing late evidence – whether the Tribunal erred in failing to consider defences of the Appellant LEAVE TO APPEAL – whether leave to appeal should be granted because the Tribunal failed to give appropriate weight to the Appellant’s affidavit evidence – whether leave to appeal should be granted because the Tribunal preferred the expert’s report relied on by the Respondents over the Appellant’s expert report |
| McEwan v Port Stephens Council [2018] NSWCATAP 211
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; S Higgins, Senior MemberCatchwords: APPEAL – ADMINISTRATIVE LAW – access to objections to development application – balancing of interests for and against disclosure where information sought is open access information – public interest considerations against disclosure – application of appeal right where part of reasons not disclosed to appellant – adequacy of reasons – need to address material evidence against existence of factor relied upon to refuse disclosure |
| Champion Homes Sales Pty Ltd v Bailey [2018] NSWCATAP 212
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – interpretation of contractual provisions – question of law – leave to appeal |
| Infrastructure NSW & Department of The Premier and Cabinet v Mookhey [2018] NSWCATAP 213
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – Administrative Law – access to government information – cabinet information – no reasonable grounds for claim that Cabinet information – procedural fairness – whether agency should have opportunity to rely on alternative grounds to refuse access |
| Sheiman v Carpet Solutions [2018] NSWCATAP 214
Consumer and Commercial Division - General
Decision of: K Rosser, Principal Member; R Perrignon, Senior MemberCatchwords: APPEALS – application to renew proceedings for rectification orders under Fair Trading Act 1987 (NSW) – leave to appeal – whether substantial miscarriage of justice – whether fresh evidence may be given on appeal |
| Kostov v Ecclesia Housing Limited (No 2) [2018] NSWCATAP 215
Consumer and Commercial Division - Tenancy
Decision of: The Hon J Boland ADCJ Deputy President; The Hon F Marks Principal Member Catchwords: PRACTICE AND PROCEDURE – application to set aside decision – principles to be applied – held no lost opportunity to present case because case futile – application dismissed PRACTICE AND PROCEDURE – stay application – set aside application to be dismissed – no basis for stay of proceedings |
| RTO Experts Pty Ltd v Pathways Psychology Institute Pty Ltd [2018] NSWCATAP 216
Consumer and Commercial Division - General
Decision of: L P Robberds QC, Senior Member; L Wilson, Senior MemberCatchwords: CONTRACT – contract for consulting services discharged – contract mutually abandoned – restitution for part of contract price – question whether any additional payment should be ordered remitted by Appeal Panel to Tribunal WORDS AND PHRASES – substantial miscarriage of justice – fair and equitable – weight of evidence – significant new evidence – Civil and Administrative Tribunal Act 2013 (NSW) Sch 4, cl 12 |
| Chalhoub v Astro Real Estate Holding Pty Ltd [2018] NSWCATAP 217
Consumer and Commercial Division - General
Decision of: The Hon F Marks Principal Member; L Wilson Senior Member Catchwords: APPEAL – whether real estate agent commission payable – held no appealable error – appeal dismissed |
| Moulton v Aulak Pty Ltd [2018] NSWCATAP 218
Consumer and Commercial Division - Retirement Villages
Decision of: A Bell SC, Senior Member; D Goldstein, Senior Member Catchwords: RETIREMENT VILLAGES – budgets – approval of under the Retirement Villages Act 1999 |
| Kong Crete Pty Ltd v Molter [2018] NSWCATAP 219
Consumer and Commercial Division - Home Building
Decision of: F Corsaro SC, Senior Member; D Charles, Senior Member Catchwords: APPEAL – home building dispute – a hearing in the absence of a party – no error of law on the grounds of procedural fairness – no other grounds for leave to appeal |
| Chi v Roger Fuller Pty Ltd (No 2) [2018] NSWCATAP 220
Consumer and Commercial Division - General
Decision of: D Cowdroy QC ADCJ, Deputy President; G Sarginson, Senior Member Catchwords: COSTS – special circumstances – whether established |
| Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221
Consumer and Commercial Division - Tenancy
Decision of: The Hon J Boland ADCJ Deputy President; The Hon F Marks Principal Member Catchwords: Application to suppress publication of decision – principles and statutory basis – held case not made out – application dismissed |
| Greenacre v Mayer [2018] NSWCATAP 222
Consumer and Commercial Division - Tenancy
Decision of: S Higgins, Senior Member; G Burton SC, FCIArb, Senior Member Catchwords: RESIDENTIAL TENANCY – compensation for damage |
| Kadsielski v Guca 1 Pty Ltd [2018] NSWCATAP 223
Consumer and Commercial Division - Tenancy
Decision of: R Titterton, Principal Member Catchwords: COSTS – special circumstances – where application dismissed as misconceived – exercise of discretion – no costs awarded |
| Webb v Port Stephens Council [2018] NSWCATAP 224
Administrative and Equal Opportunity Division
Decision of: P Durack SC, Senior Member; S Higgins, Senior Member Catchwords: APPEAL – ADMINISTRATIVE LAW – access to information about consultations by Council about objections to development applications – public interest considerations against disclosure – reasons in McEwan decision apply to important factor relied upon against disclosure – other decisions that Council did not hold information sought – no justification for leave to appeal such decisions |
| Klewer v Roberts [2018] NSWCATAP 225
Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; T Simon, Senior Member Catchwords: Appeal from decision dismissing application after applicant left proceedings – held applicant justified in leaving proceedings – appeal allowed – held rejection of claim for rental arrears on basis of no available rental records without consideration of any other evidence constituted miscarriage of justice – decision set aside – matter remitted for hearing of application |
| Nutek Constructions Pty Ltd v Slotwinski (No 3) [2018] NSWCATAP 226
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member Catchwords: INTERLOCUTORY ORDERS – application for a stay – no question of principle |
| Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227
Consumer and Commercial Division - Home Building
Decision of: A Coleman SC, Senior Member; J Currie, Senior Member Catchwords: APPEAL – leave to appeal – challenge to interlocutory decision affecting final decision – refusal to grant adjournment – leave refused |
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