| | | | | NCAT Legal Bulletin Issue 5 of 2020
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the Supreme Court of New South Wales, New South Wales Court of Appeal and the Victorian Court of Appeal, including:
- Ippolito v Cesco [2020] NSWSC 561 – where Ball J awarded damages for rectification costs to a home owner for breaches of statutory warranties in the Home Building Act 1989 (NSW) and considered the proper application of s 48MA of that Act in the context of Supreme Court proceedings.
- Cohen v Zanzoul trading as Uniq Building Group [2020] NSWSC 592 – where Stevenson J held that the parties to a home building contract, following the owners’ repudiation and the builder’s acceptance of that repudiation, each had “unconditionally acquired” rights under the contract, resulting from the other party’s breaches. His Honour applied the principle recently articulated by the High Court in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 that, where a contract is validly terminated for breach or repudiation, the contract remains on foot for the purpose of regulating any rights that the parties’ have already acquired, including rights to damages for their breach.
- Kirby v Dental Council of NSW [2020] NSWCA 91 – where the NSW Court of Appeal dismissed an appeal from the Supreme Court, which was an appeal from the Occupational Division in NCAT relating to the imposition of conditions on a dental practitioner’s registration. The Court of Appeal held (a) that NCAT and the primary judge did not err in finding that the Dental Council of NSW’s decision to impose conditions was not affected by apprehended bias and (b) that NCAT did not fail to exercise its jurisdiction under s 159 of the National Law (and in particular, s 159(3), which requires NCAT to proceed by way of a hearing de novo).
- Braham v ACN 101 483 580 Pty Ltd [2020] VSCA 108 – where the Victorian Court of Appeal dismissed an appeal from the Supreme Court of Victoria, affirming the Supreme Court’s finding that the defendant law firm did not engage in misleading or deceptive conduct (in breach of s 18 of the Australian Consumer Law), either by making positive representations to the plaintiff or by omitting an “important qualifying fact” in the sense described in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; (2010) 241 CLR 357. The judgment also applies the principles relevant to adequacy of reasons discussed in Hunter v Traffic Accident Commission & Avalanche [2005] VSCA 1.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin. |
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Supreme Court of New South Wales
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| Ippolito v Cesco [2020] NSWSC 561
14 May 2020 - Ball J
In sum: The Supreme Court awarded damages for rectification costs to a home owner for breaches of statutory warranties in the Home Building Act 1989 (NSW) (the HB Act). Ball J held that it was not appropriate for the Court to order the builder to rectify the defects in circumstances where the owner specifically sought damages, not a rectification order. This turned on the proper application of s 48MA of the HB Act. The owner was unsuccessful in claiming compensation for lost rent and alternative accommodation in circumstances where it would not be reasonable to move out during the rectification work.
Facts: Mr Ippolito (the owner) and Mr Cesco (the contractor) were parties to a home building contract in respect of a residential development in Willoughby (the Development) ([1]-[2]).
The owner raised complaints about the construction of the Development, particularly relating to ongoing water ingress in both houses on the property ([7]-[8], [11]).
Although the contractor attended to any problems brought to his attention promptly, relations between him and the owner started to deteriorate. The owner complained to Fair Trading NSW, which resulted in a rectification certificate being issued ([9]).
The owner engaged third party builders to inspect the houses, provide inspection reports, undertake temporary repairs, and undertake more extensive rectification work. He was informed by one building company that it had uncovered further defective work which was outside the scope of works of its contracts ([12], [15]-[17]).
In the Supreme Court, the owner sought compensation for those expenses, together with interest. He also sought the costs of rectifying the remaining defects and of lost rent and alternative accommodation while the rectification was carried out ([20]).
Accordingly, the Court had to decide (a) whether the defects claimed by the owner exist or existed, (b) whether it should order the contractor to rectify the defects rather than awarding damages for the costs of rectification, and (c) if it should award damages, what those damages should be ([1]).
Held (awarding the owner damages for the costs of rectifying defects made out in the evidence):
Whether the defects existed – YES
(i) Ball J accepted expert evidence led by the owner about a range of defects in the Development, including defects in the façade (relating to water drainage and water proofing), “hydraulic defects” and “general building defects” ([23]-[63]).
Whether the contractor should be given an opportunity to rectify the defects – NO
(ii) Section 48MA of the HB Act provides that a court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome ([64]).
(iii) Section 48MA is a curious provision, at least insofar as it applies to the Supreme Court. It was common ground that the section does not give the Court power to order “the responsible party” to undertake rectification work. Section 48O(1)(a) gives the Tribunal power to order that one party to the proceedings pay to the other a sum of money, and s 48O(1)(c)(i) gives the Tribunal power to order a party to proceedings to “do any specified work or perform any specified service”. In that context, s 48MA is to be understood as saying that, in deciding whether to make a monetary order or order that certain work be performed, the Tribunal should give preference to orders of the latter type ([65]).
(iv) In this case, the contractor submitted that the Court could give effect to the principle in s 48MA by ([68]-[71]):
(a) ordering specific performance of cl M14 of the Contract which provides: “If there is any remaining defect or incomplete necessary work … [the contractor] must promptly return to the site and correct the defect or finalise the incomplete necessary work”, OR
(b) indicating which of the alleged defects are made out and the rectification method that should be adopted, declining to award damages, and adjourning the proceedings to allow the rectification work to be carried out, OR
(c) remitting the matter to the Tribunal, which has power to make a rectification order in place of an order for the payment of money, OR
(d) granting a mandatory injunction to require the contractor to undertake rectification work in accordance with the order.
(v) Ball J held that the Court should not adopt any of these courses of action ([72]).
(vi) Construed in its context, cl M14 was limited in its application to circumstances in which the contractor received an instruction from the architect, or the defect was apparent to the contractor from observation during the defects liability period – neither of which occurred in this case ([74]).
(vii) A further difficulty with an order for specific performance was that it ignored the nature of the owner’s claim – being a claim for damages for breach of contract. He was entitled to that relief as of right if he could make out that claim, and s 48MA of the HBA should not be interpreted as seeking to alter that position. If the legislature had intended to make that change, it would have done so in clearer terms. At most, s 48MA should be interpreted as requiring the Court to give preference to a remedy of specific performance where one is sought ([75]).
(viii) Similar problems existed with the other alternatives proposed by the contractor. The second presupposed that the contractor had a right to rectify defects and that he should be given an opportunity exercise that right, which was not the case ([76]).
(ix) It was not appropriate to refer the matter back to the Tribunal when the matter had been heard in the Supreme Court and the owner had otherwise made out the facts entitling him to the relief claimed ([76]).
(x) Similarly, there was no basis on which the Court could substitute a remedy which the owner did not seek (a mandatory injunction) for one that he did ([77]).
Quantification of the costs of rectification
(xi) The primary question for the Court was what amount the owner would reasonably have to pay to have the existing defects rectified. In answering this question, Ball J generally preferred the evidence of the owner’s expert, with some exceptions ([79]-[81]).
(xii) In circumstances where the contractor had responded promptly to the defects raised with him, but repeatedly denied defective workmanship on his part, and sought to minimise the work involved in correcting the, it was “reasonable for [the owner] to want someone else to carry out the repair work” ([84]-[85]).
(xiii) However, the costs of obtaining building reports relating to water ingress, which were incurred in anticipation of the court proceedings, were not recoverable ([86]-[87]).
(xiv) There was also insufficient evidence connecting the contractor’s breach of warranty with the costs incurred by the owner to date for temporary repairs and rectification works carried out by third party builders ([89]-[90]).
(xv) The owner’s claims for lost rent and alternative accommodation also failed. There was no evidence that either the owner or his tenants would need to move out during the rectification work, or that the inconvenience would be so great that it would be reasonable for them to do so. A claim for lost rent was not one that flowed naturally from the contractor’s breach or that ought reasonably to have been within the contractor’s contemplation at the time the Contract was entered so as to fall within the principles in Hadley v Baxendale (1854) 9 Exch 341 ([92]-[95]).
Read the decision on the NSW Caselaw website.
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| Cohen v Zanzoul trading as Uniq Building Group [2020] NSWSC 592
19 May 2020 - Stevenson J
In sum: The Supreme Court held that the plaintiff owners had repudiated a home building contract by withholding payments to the defendant builder, and that the builder had accepted that repudiation, thereby terminating the contract. Both parties had accrued rights under the contract, meaning that the owners were entitled to compensation for any defects, and the builder was entitled to payment for amounts still owing under the contract. These rights were not altered by the fact that the contract had been terminated.
Facts: Mr and Mrs Cohen (the owners) and Mr Zanzoul trading as Uniq Building Group (the builder) were parties to a home building contract (the Contract). The builder agreed to demolish a dwelling on the owners’ waterfront property and then construct a new multi-level dwelling on the site ([1]).
Work commenced in June 2013. Between then and November 2015, the builder submitted 23 progress claims. The owners did not pay any of the progress claims in full ([9], [15]).
A number of disputes arose between the parties during the Defects Liability Period, which commenced when the Occupation Certificate was issued in November 2015 and concluded in May 2016. In sum, the builder alleged that the owners had repudiated the Contract by refusing to make further payments to him, the owners demanded that the builder rectify incomplete and defective work, and the builder agreed to carry out that work on the condition that “long overdue payments” were made. In August 2017, the owners engaged another building company to carry out the rectification works ([17]-[21]).
The owners commenced proceedings in NCAT in September 2017. The proceedings were transferred to the Supreme Court in December 2017 ([23]).
The owners claimed damages, interest and costs arising out of the builder’s alleged failure to carry out works in accordance with the Contract, including expenses incurred in rectifying the defects. The owners alleged that there were incomplete and defective works constituting breaches of the warranties implied into the Contract by s 18B of the HB Act. The builder made a cross claim seeking to recover the amounts due under the progress claims as well as a “margin” and “delay costs” ([24], [29]).
Held (holding that the owners were entitled to compensation for any defects, and the builder was entitled to recover the amounts due in respect of the progress claims):
Whether the owners repudiated the contract – YES
(i) The fundamental issue was whether, as the builder contended, the owners repudiated their obligations under the Contract from November 2015 by refusing to make payments to him ([26]).
(ii) Repudiation of a contract occurs where one party evinces an intention no longer to be bound by the contract, or to fulfil the contract only in a manner substantially inconsistent with that party’s obligations under the contract, and not in any other way. The question is one of fact, to be determined objectively. The test is whether the conduct of one party is such as to convey to a reasonable person in the situation of the other party renunciation either of the contract as a whole or of a fundamental obligation under it. What matters is the character of the conduct said to constitute the repudiation. The state of mind of the alleged repudiator is irrelevant ([93]-[95]).
(iii) Stevenson J held that the owners did repudiate the contract by refusing to make payments when they were not entitled to do so under the Contract. By their conduct, the owners were not only asserting that the builder was not entitled to be paid for work he had done, but were asserting that he had been paid more than that entitlement. This clearly evinced an intention no longer to be bound by the Contract, and “reach[ed] the bar of repudiatory conduct” ([31], [48], [53], [55], [76], [96]-[104]).
The effect of repudiation and termination
(iv) By reason of the builder’s acceptance of the owners’ repudiation, the contract came to an end ([32], [105]-[106]).
(v) The builder contended that, by reason of the owners’ repudiation, he was discharged from any obligation to rectify any defects in the building work ([28]).
(vi) In this regard, counsel for the builder submitted ([105]):
“If a repudiating party cannot enforce the innocent party’s primary obligation of performance, then there is no basis upon which it could enforce a secondary obligation to pay damages.” (Emphasis added.)
(vii) Stevenson J held that this submission was not correct, and reflected what the High Court recently referred to in Mann v Paterson Constructions Pty Ltd [2019] HCA 32 as the “rescission fallacy” ([111]-[112]).
(viii) In Mann the High Court said at [8] ([113]):
“The theory that the contract between the parties becomes ‘entirely irrelevant’ upon discharge for repudiation or breach is indeed fallacious. As Mason CJ said in Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 356; [1993] HCA 4: ‘It is now clear that ... the discharge operates only prospectively, that is, it is not equivalent to rescission ab initio.’
The notion that the termination of a contract for repudiation or breach has the effect of rescinding the contract ab initio was unequivocally rejected by this Court in McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25. In that case, Dixon J, with whom Rich and McTiernan JJ agreed, said:
‘When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. But when a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach.’”
(ix) The correct position is that ([115]):
“Where the promisee validly terminates performance of a contract for breach or repudiation, both parties are discharged from their obligation to perform (or to be ready, willing and able to perform) their unperformed contractual obligations. The contract remains on foot for the possible purpose of regulating the parties’ right[s] so far as those rights had already been acquired, including rights to damages for their breach”: Mann at [10].
(x) The owners were correct to submit that: “The accrued rights of both innocent and defaulting parties that have been unconditionally acquired before the election of an innocent party to accept repudiation and terminate a … contract are not divested or discharged upon such election to terminate” ([115]).
(xi) Accordingly, both the owners and the builder had “unconditionally acquired” rights which “accrued” from the breach of contract by the other. The owners had unconditionally acquired the right to recover damages from the builder in relation to any defective building work, while the builder had unconditionally acquired the right to recover as a debt from the owners any monies due to him under the Contract, including the progress claims ([33]-[35], [116]-[118], [191]-[192]).
(xii) However, the builder failed to prove any entitlement to payment of a “margin” based on variations not completed within the original time frame under the Contract, or for the costs of delay caused by the owners or their agents or contractors ([167], [180]).
(xiii) Stevenson J indicated (but did not formally order) that the parties should “confer and endeavour to agree on what steps should now be taken in the proceedings” ([193]).
Read the decision on the NSW Caselaw website.
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| New South Wales Court of Appeal
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| Kirby v Dental Council of NSW [2020] NSWCA 91
12 May 2020 - Payne JA, Brereton JA, Emmett AJA
In sum: The Court of Appeal granted leave to appeal but dismissed an appeal from a decision of a single judge (Barrett AJ) in the Supreme Court, which in turn was an appeal from a decision in the Occupational Division of NCAT. In doing so, the Court of Appeal held that NCAT did not err (a) by finding that the imposition of conditions on the appellant’s registration as a dentist was not affected by apprehended bias, or (b) by failing to exercise its jurisdiction under the Health Practitioner Regulation National Law (NSW) (the National Law).
Facts: In 2015 the Health Care Complaints Commission (the HCCC) received a complaint that Dr Kirby, a registered dentist practising in NSW, was applying a substance known as “Cansema” to the skin of some of his dental patients as a purported treatment for skin cancer. The Dental Council of NSW (the Council) by its delegates suspended his registration pursuant to s 150(1)(a) of the National Law ([19], [34]).
In 2016, following a review under s 150A of the National Law, the Council lifted Dr Kirby’s suspension and instead imposed conditions on his registration. Amongst other things, these conditions limited the types of procedures Dr Kirby could perform, prohibited him from undertaking solo practice, required him to regularly report the procedures he performed to the Council, and prohibited him from possessing certain drugs and restricted substances ([40]-[43]).
Dr Kirby brought an appeal in NCAT challenging the decisions to suspend his registration and to impose conditions, under both s 159 (merits review) and s 159B (error of law) of the National Law. NCAT dismissed the appeal ([44], [50]).
Dr Kirby brought an appeal in the Supreme Court, which was also dismissed ([51], [54]). Dr Kirby then sought leave to appeal to the Court of Appeal ([9]).
Held (granting leave to appeal and dismissing the appeal):
Whether NCAT should have held that the Council’s two decisions were affected by apprehended bias – NO
(i) The primary judge recognised and proceeded on the basis that the applicant’s case was one of apprehended bias founded on incompatibility of roles arising from prior involvement of the Council’s delegates in investigating the complaint against Dr Kirby. In that context, NCAT and the primary judge were right to apply the “double might” test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 – that is, to ask whether a fair-minded observer might reasonably apprehend that the Council might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide ([4], [46], [64]-[68], [76], [136]).
(ii) The primary judge did not fail to appreciate the distinction between an “interest” case and a “prejudgment” case. Although the “degree of closure of mind” is less significant in an “interest” case than in a “prejudgment” case, the manner in which the primary judge used that notion was not erroneous. The Ebner test embraces both “interest” and “prejudgment” cases ([63], [70]-[73], [77], [79], [136]).
(iii) While it goes without saying that the role of accuser and adjudicator are generally incompatible, the question whether an adjudicator is also a prosecutor is treated as one of substance, and not mere form ([82]).
(iv) The primary judge rightly held that the prior involvement of the delegates was not such as to invest them with an “interest” incompatible with adjudicating the s 150 proceedings ([86], [137]).
(v) In the relevant statutory context, there was no incompatibility between the involvement of the delegates in investigating the complaint and their being the Council’s delegates for the purpose of considering whether s 150 action should be taken. Nothing they did associated them, in any reasonable view, with contending for any particular outcome of that consideration. They were not accusers or prosecutors, and their prior involvement was not such as to invest them with a relevant “interest” in the outcome ([92], [137]).
Whether NCAT, in confirming that the conditions imposed on Dr Kirby’s registration were appropriate, failed to exercise its jurisdiction under s 159 of the National Law – NO
(vi) NCAT’s function on appeal was to proceed by way of hearing de novo, pursuant to s 159(3) of the National Law. That section previously provided for NCAT to deal with an appeal by way of “reconsideration” and was later amended to provide for an appeal by way of “rehearing” ([117]).
(vii) Brereton JA (Payne JA and Emmett AJA agreeing) proceeded on the basis that, under both the previous and the current version of s 159(3), NCAT was required to consider the administrative discretion in s 150 afresh, as if it were the Council, upon the evidence (including any additional evidence) before it ([119]).
(viii) NCAT’s powers on appeal were defined by s 159C of the National Law, allowing it to “terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions [on registration], as it thinks proper” ([117], [120]).
(ix) Thus NCAT was required to determine, first, whether action under s 150 was to be taken, and if so, what action – suspension, or imposition of appropriate conditions – was appropriate for the protection of the health or safety of any person(s) or in the public interest ([121]).
(x) The appellant contended that NCAT did not conduct a proper hearing de novo on the question of conditions in circumstances where it had found that the conditions which the Council had imposed on Dr Kirby did not “correlate neatly” with the Council's concerns, but did not "identify what the lack of correlation was and then impose alternative conditions” ([122]).
(xi) However, the question for NCAT was not whether the conditions imposed on Dr Kirby’s registration were "appropriate” by reference to the Council's concerns, but what conditions were appropriate by reference to NCAT’s own conclusions as to the risk Dr Kirby's practice posed to the health or safety of his patients. NCAT made this assessment, concluding that although the conditions may not have neatly conformed to the concerns expressed by the Council, they were the minimum appropriate to protect the health or safety of Dr Kirby's patients ([123]-[124]).
(xii) Accordingly, NCAT did not fail to conduct a hearing de novo on the question of conditions, or constructively fail to exercise its jurisdiction ([123]).
(xiii) Insofar as this point was raised before the primary judge, his Honour rightly held that no error was demonstrated in NCAT’s approach to the imposition of conditions on Dr Kirby’s registration ([133], [138]).
Whether leave should be granted – YES
(xiv) While leave would ordinarily not be granted as the decisions were interlocutory in nature, had already been appealed twice, and were not shown to involve any relevant error of law, the consideration of important provisions of the National Law which to date had received little attention, in the context of a proceeding which was fully heard as an appeal on a concurrent hearing, warranted a grant of leave ([7], [139]).
Read the decision on the NSW Caselaw website.
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| Victorian Court of Appeal
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| Braham v ACN 101 483 580 Pty Ltd [2020] VSCA 108
6 May 2020 - Tate JA, McLeish JA, Niall JA
In sum: The Victorian Court of Appeal granted leave but dismissed an appeal from the Supreme Court of Victoria, affirming the Supreme Court’s finding that the defendant law firm did not engage in misleading or deceptive conduct, either by making positive representations to the plaintiff or by omitting an “important qualifying fact”.
Facts: In 2016 Simon Braham borrowed approximately $1.2 million and invested it in timber plantations through a partnership which claimed the investment as a loss. Mr Braham claimed his proportion of the partnership loss as a tax deduction, yielding a tax refund of approximately $530,000. The refund was provided to the partnership for a secondary investment, the yield from which was intended to make repayments on the loan. It was intended that the investment would comply with an Australian Tax Office (ATO) Product Ruling that identified the circumstances in which investments of this kind would yield accelerated tax deductions ([1]).
In 2010 Mr Braham was subject to an ATO audit. The deduction was disallowed, and Mr Braham was required to pay tax, interest and a penalty. Mr Braham’s objection was disallowed and his application to the Administrative Appeals Tribunal to review the objection was settled with him paying the tax due and interest and penalties being waived ([2]).
Mr Braham brought proceedings in the Supreme Court against a firm of solicitors, Ambry Legal (Ambry), alleging, amongst other things, that Ambry had engaged in misleading or deceptive conduct by representing to him that the partnership structure utilised would comply with the Ruling ([3]-[4]).
The Supreme Court rejected the misleading and deceptive conduct claim, finding that (a) Ambry was not retained to give legal advice regarding the investment model generally, or specifically as to its compliance with the Ruling, and (b) Ambry did not make representations as to whether the investment complied with the Ruling. Mr Braham brought an appeal, contending that the misleading or deceptive conduct finding should be reversed ([6]-[7]).
Held (granting leave to appeal but dismissing the appeal):
Whether Ambry made a positive representation to Mr Brahams – NO
(i) Whether conduct conveys a representation is to be determined objectively, taking into account the circumstances. Relevant matters include the nature of the parties and their relationship; the character of the transaction; the terms of the partnership agreement; and the state of knowledge of the participants ([159]).
(ii) Amongst other factors, the Court considered the following: Mr Braham was an experienced investor; the investment involved a large amount of money which would warrant prudence on his part; Mr Braham did not retain or have any direct communication with Ambry; there was no reasonable basis for him to assume that Mr Lukedens (who retained Ambry) had obtained any specific advice from Ambry in relation to whether the proposed scheme complied with the Ruling; Mr Braham’s evidence made it clear that he looked to Mr Lukedens, rather than Ambry, to provide assurances in relation to the transaction; and the partnership agreement expressly provided that each “silent partner” warranted that they had obtained independent legal and financial advice ([160]-[167]).
(iii) Upon assessment of these objective factors, the Court was not satisfied that the drafting and proffering of the partnership agreement by Ambry entailed a representation that the agreement complied with the Ruling ([168]).
Whether Ambry engaged in misleading or deceptive conduct by silence; non-disclosure of an “important qualifying fact” – NO
(iv) Although s 18 of the Australian Consumer Law captures conduct beyond making a representation, the most common form of proceeding remains one based on a misrepresentation on which the plaintiff relies, resulting in loss and damage ([152]).
(v) Conduct that does not readily constitute a representation as to present or future matters may still be misleading or deceptive. Examples may include omissions, silence and half-truths that are, in their context, misleading or deceptive ([152]).
(vi) Cases that do not involve a direct representation to the plaintiff can raise challenging questions of causation ([154]).
(vii) As an alternative to his positive misrepresentation case, Mr Braham sought to characterise the failure of Ambry to contradict the pleaded representations as the non-disclosure of an “important qualifying fact” without which the preparation of the agreement was misleading. This relied on the following passage in the reasons of French CJ and Kiefel J in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; (2010) 241 CLR 357 ([153]):
“When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient would be misled, absent such disclosure, into believing that the statement was complete.”
(viii) Since the preparation of the partnership agreement did not convey any representation of the kind pleaded, Ambry’s failure to correct what was conveyed could not be characterised as an “important qualifying fact” in this sense. Mr Braham’s argument based on Ambry’s silence or omission was circular, and led nowhere ([185]).
Inadequacy of reasons
(ix) This ground was “faintly pressed” and dealt with briefly ([190]).
(x) The Court of Appeal referred to the relevant principles as summarised by Nettle JA in Hunter v Traffic Accident Commission & Avalanche [2005] VSCA 1 at [21]:
“... while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.”
(xi) The single judge’s reasons below were detailed and precise, set out factual conclusions and referred to the evidence on which they were based, and gave explanations as to why evidence was rejected or given little weight. The path of reasoning on each of the three causes of action was revealed and easily comprehended. Accordingly, the Court of Appeal held there was no substance to this ground ([192]).
Read the decision on the Australasian Legal Information Institute (AustLII) website.
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| | Decisions of Interest Bulletin
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| | Ballas v Department of Education (State of NSW) [2020] NSWCA 86
ADMINISTRATIVE LAW – judicial review – whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar – whether Delegate’s decision contained jurisdictional error – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations – whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion.
WORKERS COMPENSATION – Workers Compensation Guidelines – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment – whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion.
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| Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses.
CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement.
CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses.
CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration. |
| | Lawrence v Ciantar [2020] NSWCA 89 CONTRACTS – Construction – Interpretation – Principles of construction of commercial contracts.
CONTRACTS – Breach of contract – Consequences of breach – Right to termination – No specific performance.
STATUTORY INTERPRETATION – Home Building Act 1989 (NSW) – Definition of “residential building work” – Preliminary works. |
| TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93
BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)
BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid
BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4)
STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) |
| DVE18 v Minister for Home Affairs [2020] FCAFC 83
MIGRATION – appeal from orders dismissing application for judicial review of a migration decision – respondent Minister refusing to grant the appellant a visa in the exercise of the power conferred by s 501(1) of the Migration Act 1958 (Cth) – whether appellant made a claim that his wife and child would be at risk of harm if the visa was refused so as to give rise to an obligation in the Minister to consider it – whether Minister in fact considered such a claim – whether such failure amounted to jurisdictional error in the circumstance of the case – whether breach of rules of procedural fairness – whether constructive failure on the part of the Minister to exercise the jurisdiction conferred by s 501(1) |
| James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101
JUDGMENTS AND ORDERS – setting aside – consent judgment – general power to set aside judgment or order – challenge to validity of agreement – whether judgment based on agreement – Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1)
JUDGMENTS AND ORDERS – amending, varying and setting aside – consent judgement – orders entered – finality of entered orders
CONTRACTS – grounds for setting aside – misleading or deceptive conduct – non-disclosure of information – relevance of actual or constructive knowledge of silent party as to complainant’s beliefs – relevance of undisclosed beliefs of complainant
CIVIL PROCEDURE – Court of Appeal – leave to appeal – dismissal – lack of issue of principle, question of general public important or an injustice to the applicant going beyond merely arguable |
| MDF v Central Queensland Network Authorised Mental Health Service & Anor [2020] QCA 108
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – where an examination authority was issued in relation to the appellant under the Mental Health Act 2016 (Qld) – where the appellant was detained for seven days – where a treatment authority signed by a general practitioner and a psychiatrist diagnosed that the appellant suffered from paranoid schizophrenia – where the treatment authority was subsequently revoked after the appellant had received treatment – where the appellant requested statements of reasons for various decisions from the respondents under s 32 of the Judicial Review Act 1991 (Qld) – whether the appellant was entitled to an order under s 38 of the Judicial Review Act that the respondents give statements of reasons
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the appellant applied for statements of reasons in relation to four decisions he attributed to the first respondent: a decision to support an application for an examination authority, a decision to request police assistance to execute the examination authority, a decision to make a recommendation for assessment, and a decision to make a treatment authority for the appellant – whether the first respondent made such decisions or whether they were made by other persons – whether such decisions were decisions of an administrative character made under an enactment
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – where the reasons for the decision of the second respondent, the Mental Health Review Tribunal, to issue the examination authority were not provided to the appellant – where the Attorney-General issued a certificate under s 36 of the Judicial Review Act certifying that the disclosure of information relating to the decision of the tribunal to issue the examination authority would be contrary to the public interest – where the president of the tribunal deposed in an affidavit that disclosure of the statement of reasons would undermine public confidence in the confidentiality of information provided to the tribunal – whether the decision of the tribunal was subject to judicial review – whether the tribunal’s statement of reasons should be provided to the appellant – whether the statement of reasons would be false and misleading if provided to the appellant with redactions in accordance with the Attorney-General’s certificate |
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin 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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