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| NCAT Appeal Decisions Digest February 2016 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.
Under the Civil and Administrative Tribunal Act 2013, parties have a right to appeal to the Internal Appeal Panel from any decision made by the Tribunal in proceedings for a general decision or an administrative review decision. Detailed information about appeals is available on the NCAT website.
The following NCAT Appeal Panel decisions were handed down during the month of February 2016. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Buses & 4WD Hire Pty Limited v Richardson [2016] NSWCATAP 24
Consumer & Commercial Division - General
Judgment of: J REDFERN, Principal Member; K ROSSER, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consumer claim – whether breach of rental agreement for the hire of a coach – coach damaged – supplier deducted money from credit card for damage – proceedings commenced by consumer for recovery of money and orders for relief – proceedings also commenced by supplier in Tribunal and local court – whether Tribunal had jurisdiction to determine supplier’s claim – whether determination was made in the consumer proceedings – scope of s 8 of the former Consumer Claims Act – no jurisdictional error – whether findings open on the evidence – whether Tribunal failed to identify and address a critical issue – adequacy of reasons – no error of law– leave to appeal refused – appeal dismissed |
| BLB v NSW Trustee and Guardian [2016] NSWCATAP 25
Administrative & Equal Opportunity Division - Administrative Review
Judgment of: J REDFERN, Principal Member; P MOLONY, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – administrative review – review of decision of the NSW Trustee and Guardian to sell home of protected person in which appellant lived – protected person in aged care facility – appellant was carer – issue of whether appellant had sufficient funds to pay shortfall – whether Tribunal had obligation to put appellant on notice of possible adverse finding – no denial of procedural fairness in circumstances – appellant on notice of the issue – whether evidence to support findings – no error of law – new proposal by appellant – change of circumstances – leave to appeal refused – no utility – appeal dismissed PRACTICE AND PROCEDURE – extension of time – reasonable explanation for delay – no evidence of prejudice – arguable case – granted |
| Gartrell v Roth [2016] NSWCATAP 26
Consumer & Comemrcial Division - Commercial
Judgment of: M SCHYVENS, Deputy President; R TITTERTON, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – costs on appeal – special circumstances |
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Lee v Ace NSW Pty Ltd [2016] NSWCATAP 29
Consumer & Commercial Division - Home Building
Judgment of: Dr J RENWICK SC; T SIMON, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Home Building Act 1989 s 18B –a head contractor did get the benefit of warranties under former s 18B(f) |
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Codlea Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAP 30
Administrative & Equal Opportunity Division - Revenue
Judgment of: Dr J RENWICK SC, Prof G WALKER, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – STATE TAXES - Appeal Panel – Land Tax Management Act – Land used for purpose of beekeeping – no question of law arising from finding below that land did not qualify for exemption from land tax– appeal dismissed |
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Adams v New South Wales Land & Housing Corporation [2016] NSWCATAP 31
Consumer & Commercial Division - Social Housing
Judgment of: S HIGGINS, Principal Member; S THODE, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – internal appeal of decision to terminate a social housing tenancy agreement on grounds of a breach of the agreement – cause or permit a nuisance - cause or permit interference with the reasonable peace comfort or privacy of neighbours - appeal on a question of law – failure to take into account a relevant consideration – s 152 of the Residential Tenancies Act – failure to provide adequate reasons for decision |
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Salera v Buuna Pty Ltd [2016] NSWCATAP 32
Consumer & Commercial Division - General
Judgment of: MARKS ADCJ, Principal Member; S THODE, Senior Member Catchwords: Appeal – proper approach to construction of contract - extension of time to appeal - incorrect construction of contract - appeal allowed - consequential orders made |
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Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 33
Consumer & Commercial Division - Home Building
Judgment of: insert member names Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW)- whether appeal as of right established- whether leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) required- whether leave pursuant to clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ought be granted - interpretation of standard form contract issued by the Master Builders Association NSW for Residential Small Renovations & Additions - whether contract incorporates references in the BASIX certificate – where the respondent did what it quoted for and built in accordance with the drawings and the quote - there has been an error and the Tribunal was clearly mistaken in the calculation of the refund in relation to the shower screens - leave to appeal established |
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Moniaci v Erickson [2016] NSWCATAP 34
Consumer & Commercial Division - Tenancy
Judgment of: J REDFERN, Principal Member; S THODE, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – residential tenancy dispute – whether residential premises fit for habitation – flooding of granny flat after storm – application for rent abatement and compensation – adjournment requests refused before hearing – whether denial of procedural fairness – no error found – leave to appeal refused – appeal dismissed |
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Basha v Rathsam [2016] NSWCATAP 35
Consumer & Commercial Division - Tenancy
Judgment of: S WESTGARTH, Deputy President; M ANDERSON, Senior Member Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW) - no appeal as of right established- leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) -considered whether leave pursuant to clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) may be granted- leave refused |
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Sylvaney v Carolan [2016] NSWCATAP 36
Consumer & Commercial Division - Commercial
Judgment of: J REDFERN, Principal Member; P MOLONY, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – consent orders for the payment of monies under an agricultural lease – grounds to set aside consent orders – duress or undue influence – unconscionable conduct – grounds not established – no error of law – leave to appeal refused – appeal dismissed COSTS – whether special circumstances – grounds established – fixed costs order made |
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Antonio v Ian Cubitt's Classic Home Improvements Pty Ltd [2016] NSWCATAP 37
Consumer & Commercial Division - Home Building
Judgment of: WRIGHT J, President; M DICKER SC, Senor Member Catchwords: PRACTICE AND PROCEDURE – Civil and Administrative Tribunal (NSW) –“part heard proceedings” – transitional provisions – application of Sch 1 cl 7 of the Civil and Administrative Tribunal Act 2013 (NSW) COSTS – whether costs decision is interlocutory or ancillary decision – costs decision ancillary under s 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – no error in exercise of discretion |
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D&R Constructions (Aust) Pty Ltd v Wesiak [2016] NSWCATAP 38
Consumer & Commercial Division - Home Building
Judgment of: MARKS ADCJ, Principal Member; D GOLDSTEIN, Senior Member Catchwords: Building contract- Held letter that respondents were seeking alternative quotations to complete building works and to then terminate the contract constituted repudiation entitling the appellant builder to terminate the contract - Consequential orders made |
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Bartlett v Hewitt [2016] NSWCATAP 40
Consumer & Commercial Division - Tenancy
Judgment of: O'CONNOR ADCJ, Deputy President; K ROSSER, Senior Member Catchwords: RESIDENTIAL TENANCY – Appeal against dismissal of tenant’s application for retaliatory eviction declaration - Further decision since lodgment of appeal dismissing landlord’s termination application - No longer any live controversy – Tenant’s appeal dismissed for want of jurisdiction |
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Kapetanellis v Hatem [2016] NSWCATAP 41
Consumer & Commercial Division - Home Building
Judgment of: L ROBBERDS QC; D GOLDSTEIN, Senior Members Catchwords: Home Building Act 1989 – dispute as to method and cost of rectification of work carried out by owner-builder – damages to be assessed on a once and for all basis – whether leave to appeal should be granted – alleged threat to the stability of part of the work – obligation of Tribunal to give adequate reasons for decision – amendment of grounds of appeal |
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Davies v O'Keeffe [2016] NSWCATAP 43
Consumer & Commercial Division - Social Housing
Judgment of: O SHUB, Principal Member; T SIMON, Senior Member Catchwords: Error of law, residential tenancy, notice of hearing, premises fit for habitation, extension of time, Residential Tenancies Act, repayment of rent, s43, s45 and s47 |
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Lawrence v Gunner [2016] NSWCATAP 44
Consumer & Commercial Division - Tenancy
Judgment of: O'CONNOR ADCJ, Deputy President; J LUCY, Senior Member Catchwords: RESIDENTIAL TENANCIES – Remittal of proceedings from Supreme Court to Tribunal – Whether Tribunal bound by finding that the appellants’ occupation of the subject property is founded on a residential tenancy agreement with the respondent |
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Bezzina v Nigel [2016] NSWCATAP 45
Consumer & Commercial Division - General
Judgment of: S WESTGARTH, Deputy President; S HIGGINS, Principal Member Catchwords: APPEAL – Civil and Administrative Tribunal – internal appeal from a decision of the Tribunal in the Consumer and Commercial Division – denial of procedural fairness – failure to notify appellant of the hearing date |
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Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46
Consumer & Commercial Division - Home Building
Judgment of: N HENNESSY LCM, Deputy President; D GOLDSTEIN, Senior Member Catchwords: APPEAL – costs application when proceedings settled – relevant principles are different from the principles that apply following a contested hearing – procedural fairness – whether it is a breach of procedural fairness for Member to fail to ask parties whether they object to that Member determining an application for costs when proceedings settled New hearing – consideration of material before Tribunal below – application of correct principles to costs application |
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Herbert v American Express Australia Ltd & Ors [2016] NSWCATAP 47
Consumer & Commercial Division - General
Judgment of: P DURACK SC; K ROSSER, Senior Members Catchwords: Appeal - income protection insurance for employee not paid during waiting period after injury - claim for breach of contract, unconscionable and misleading conduct - jurisdiction of Tribunal - alleged bias - no contravention or liability established |
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Hays v Rossington [2016] NSWCATAP 48
Consumer & Commercial Division - Commercial
Judgment of: D PATTEN, Principal Member; R TITTERSON, Senior Member Catchwords: Application for leave to appeal – no question of principle |
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Hewlett v Chandler [2016] NSWCATAP 50
Consumer & Commercial Division - Tenancy
Judgment of: N HENNESSY LCM, Deputy President Catchwords: INTERLOCUTORY ORDERS – application for stay of a decision to give vacant possession to landlord – settlement on sale of property scheduled in 3 days from hearing the stay application – no merit in appeal – significant prejudice to landlord if stay granted even though appeal would be rendered nugatory |
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Phan Building Services Pty Ltd v Dang [2016] NSWCATAP 51
Consumer & Commercial Division - Home Building
Judgment of: COWDROY ADCJ, Principal Member; K ROSSER, Senior Member Catchwords: APPEAL: Question of law; leave to appeal; quantum meruit assessment; discretion in respect of costs |
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Sakkara Investment Holdings Pty Ltd as trustee for Sakkara Landings Trust v The Residents Committee of The Landings Retirement Village [2016] NSWCATAP 52
Consumer & Commercial Division - Retirement Village
Judgment of: WRIGHT J, President; M HARROWELL, Principal Member Catchwords: RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW) – under s 116(3) operator must expend money received by way of recurrent charges in accordance with the approved annual budget or authorised amendment – under s 116(3A) an operator does not contravene s 116(3) if three additional factual circumstances apply – whether operator of retirement village bears onus of proving matters in s 116(3A) – operator bears onus of proof. RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW) – under s 119(4) the format of audited annual accounts must correspond as closely as possible with the layout of the proposed annual budget – difficulty of satisfying s 116(3A) where audited annual accounts do not comply with s 119(4) – operator unable to satisfy requirements of s 116(3A). RETIREMENT VILLAGES – Retirement Villages Act 1999 (NSW) – recurrent charges – basis on which recurrent charges accounted for in annual accounts – where annual accounts prepared on an accruals basis – Tribunal below misapprehended basis on which accounts prepared |
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ZAU v Public Guardian [2016] NSWCATAP 53
Guardianship Division - Review of Order
Judgment of: N HENNESSY LCM, Deputy President; C FOUGERE, Principal Member; S JOHNSTON, General Member (Community) Catchwords: APPEAL – guardianship orders – challenge to findings of fact adverse to appellant – objection to appointment of Public Guardian instead of appellant as guardian - grounds of appeal of questions of law not articulated by self-represented appellant - Appeal Panel identified possible grounds but no error of law found – application to appeal on grounds other than a question of law refused – appeal otherwise dismissed |
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Florida Kitchen Centre Pty Limited v Keith [2016] NSWCATAP 54
Consumer & Commercial Division - Home Building
Judgment of: N HENNESSY LCM; S WESTGARTH, Deputy Presidents Catchwords: APPEAL – Summary dismissal power – proceedings causing disadvantage - striking out a claim or defence when party causing disadvantage – scope of power APPEAL – appeal from directions as to the filing of evidence – interlocutory appeal – leave required – satellite proceedings to be discouraged |
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