NCAT Appeal Panel Decisions Digest Issue 2 of 2023 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in February 2023:
Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24: When awarding compensation in a residential tenancy dispute, reasons are not “illogical” if reference is made to previous awards of compensation, but previous awards should not be used as a “norm” or “standard form.” Further, a landlord’s behaviour prior to the period assessed for compensation is not an “irrelevant” consideration where it provides context for the period in question. Vidler v Lee t/as Northern Rivers Landscaping [2023] NSWCATAP 52: The Appeal Panel found that there may have been a substantial miscarriage of justice where the Tribunal’s approach towards the parties’ respective experts was inconsistent and likely to have produced an unfair result. Chinchilla on the Bay Pty Ltd v Independent Reserve Pty Ltd (Costs) [2023] NSWCATAP 19: Where an appeal or application is rendered futile by legislative amendments that commence immediately prior to the filing of the appeal or application and the appeal or application is subsequently withdrawn, if there is no delinquency or abuse of process, costs should not be awarded on an indemnity basis. Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49: There is no denial of procedural fairness or substantial miscarriage of justice if the Tribunal, in renewal proceedings, exclusively considers the defects that were the subject of the consent orders. There is no denial of procedural fairness should the Tribunal not raise the option of hearing fresh proceedings with the renewal proceedings if the party will not be statute-barred or estopped from raising such a claim in a further application to the Tribunal. Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36: The Principal Member (with the Senior Member dissenting on the relevant ground of appeal) held that the omission of a signature did not prevent a builder from enforcing a contract under s 10 of the Home Building Act 1989 (NSW) (HB Act) where the contract was in writing and sufficiently described the works. Section 10 of the HB Act is to be understood by its ordinary grammatical meaning, and all elements of s 7 should not be imported into the provision.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Is it “irrelevant” and “illogical” to consider comparative compensation awards and ongoing behaviour where that behaviour has been the subject of earlier proceedings? |
Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24 Consumer and Commercial Division – Social Housing G Blake AM SC, Senior Member; G Burton SC, Senior Member
In sum: It cannot be considered “illogical” for the Tribunal to have regard to earlier decisions awarding compensation as long as they are not used as a “norm” or “standard form”. Further, the existence and character of matters prior to the period assessed for damages may be considered in reasons without breaching the rule as to res judicata. Such considerations are not “irrelevant”.
Facts: The respondent (tenant) entered into a residential tenancy agreement with the appellant (landlord) in 2012. On 25 February 2022, the tenant brought proceedings in the Tribunal which resulted in the Tribunal making orders by consent on 19 April 2022, in which the landlord agreed to abide by the tenancy agreement. On 13 July 2022, the tenant commenced further proceedings against the landlord seeking compensation for the landlord’s continued breach of the tenancy agreement. On 24 October 2022, the Tribunal ordered the landlord to pay compensation. The Tribunal’s decision made reference to the ongoing nature of the behaviour complained of by the tenant (including behaviour complained of in the earlier proceeding) and comparative awards of compensation. The landlord appealed to the Appeal Panel on the basis that the Tribunal erred in taking into account irrelevant considerations and providing inadequate and illogical reasons.
Held (refusing the appeal): (i) Whether the Tribunal took into account irrelevant considerations and/or failed to provide proper reasons is a question of law. Where the Tribunal exercises its discretion in awarding damages, consistent with the principle raised in House v R (1936) 55 CLR 499, it is not enough that an appellate court (or tribunal) may have taken a different course. There must be some error in exercising discretion – acting on the wrong principle or failing to take into account a material consideration are examples of where such a determination may be reviewed (at [22], [24], [25]).
(ii) The Appeal Panel was satisfied that the rule as to res judicata applies to NCAT. However, the Tribunal did not fall into this error as it did not assess the damages to which the tenant was entitled prior to 19 April 2022. In evaluating the seriousness of the landlord’s conduct since 19 April 2022, the Tribunal was entitled to take into account the matters raised in the earlier proceedings. The existence and character of those matters were not irrelevant – they formed part of the context of the later period and indicated the landlord’s failure to take all action available to it (at [34], [35], [36]).
(iii) Whilst the Tribunal was not obliged to determine its assessment of compensation in light of previous decisions, the Appeal Panel held that it could not be considered “illogical” for the Tribunal to have reference to other decisions. To do so offers a transparent method of determining an issue. However, earlier decisions regarding an award of damages should not be used to establish a “norm” or “standard form”. The Tribunal did not fall into this error, and there was no illogicality in its reasons (at [31], [32], [40]). |
2. What weight should be afforded to expert evidence where neither party has complied with NCAT Procedural Direction 3? |
Vidler v Lee t/as Northern Rivers Landscaping [2023] NSWCATAP 52 Consumer and Commercial Division – Home Building I R Coleman SC ADCJ, Principal Member; M Gracie, Senior Member
In sum: The Tribunal’s failure to apply the same standards and considerations to each party’s expert evidence meant that its fact-finding process was not fair and equitable. Whilst NCAT is not bound by the rules of evidence, and failure to comply with NCAT Procedural Direction 3 (PD 3) does not render the expert evidence inadmissible, it was not fair and equitable to dismiss one party’s expert evidence having regard to considerations and standards that applied with equal force to the expert evidence of the other party.
Facts: The appellant (owner) engaged the respondent to construct a retaining wall on her property. The owner brought a claim under the Home Building Act 1989 (NSW) contending that the retaining wall was not built in accordance with the approved plans and certifications, and that the respondent was not licensed to undertake the works. The owner relied on an unsigned statement of a landscaper (Worthington’s evidence) which the Tribunal rejected as an expert opinion as it was unsigned, did not contain the author’s qualification or experience, did not refer to the Expert Code of Conduct and did not give an estimate of repair. The respondent had adduced expert evidence (McQueen’s evidence) which the Tribunal accepted. The owner appealed on the basis that the Tribunal’s decision was not fair and equitable. The appeal did not raise a question of law and leave to appeal was required.
Held (granting leave to appeal and allowing the appeal): (i) Whilst NCAT is not bound by the rules of evidence, PD 3 provides guidance regarding the rules and principles of law relating to expert evidence. Despite this, non-compliance with PD 3 does not render expert evidence inadmissible, although it may adversely affect the weight afforded to that evidence. Whilst it was open to the Tribunal to not afford any weight to Worthington’s unsigned statement, Worthington’s “findings” identifying allegedly defective and inadequate work were also set out in a letter from the owner to the respondent. The Tribunal, as a matter of fairness, should have had regard, and afforded some weight, to the letter on the basis that it incorporated Worthington’s findings, even if it decided to give no weight to his unsigned statement. Further, McQueen purported to have regard to documents, including “letters”, but gave no evidence of having considered the matters raised in the letter, despite those allegations going to the basis of the owner’s claims. The Appeal Panel found that the Tribunal erred in accepting McQueen’s evidence without qualification without being satisfied that McQueen was expressly aware of, and had dealt with, the matters set out in the letter (at [42]-[43], [34]-[38], [45]).
(ii) The Appeal Panel found that the Tribunal gave disproportionate weight to McQueen’s evidence, given its own shortcomings that did not comply with PD 3 including no demonstrated process of reasoning, a failure to identify correct standards, procedures or products, an unquestioning acceptance of the respondent’s evidence, no statement of awareness that his comments were being provided for the purpose of Tribunal proceedings, no acknowledgment of the Expert Code of Conduct, and no evidence of any specialised knowledge, study or training. There was a failure to treat the parties’ respective expert evidence with the same standard. The Tribunal gave no regard to Worthington’s evidence for reasons that applied with equal force to McQueen’s evidence (at [40]-[41], [45], [46]).
(iii) The Appeal Panel granted leave to appeal under Sch 4 cl 12(1) of the NCAT Act, being satisfied that the owner may have suffered a substantial miscarriage of justice and that the decision was not fair and equitable. It found that the Tribunal approached the fact-finding process in such a way that it was likely to have produced an unfair result. The approach taken by the Tribunal towards the parties’ respective experts was inconsistent, unexplained and productive of unfairness. It was not open to the Tribunal, having not applied the same standards and considerations in evaluating Worthington and McQueen’s evidence, to have accepted McQueen’s evidence as determinative. It was unjust to allow the Tribunal’s findings to stand and it was in the interests of justice to remit the matter for a new hearing (at [24], [46], [47]). |
3. What is the appropriate costs order where legislative amendments render an appeal futile? |
Chinchilla on the Bay Pty Ltd v Independent Reserve Pty Ltd (Costs) [2023] NSWCATAP 19 Consumer and Commercial Division – General S Thode, Principal Member
In sum: Where an appeal is rendered futile by legislative amendments to enabling legislation and the appeal was not withdrawn in a timely manner (and where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) is enlivened), if there is no evidence of delinquency or abuse of process, costs should be ordered on the ordinary basis.
Facts: The appellant commenced three separate proceedings seeking compensation totalling over $109,000. The dispute arose from an agreement between the parties for the trading of cryptocurrency; the appellant alleged that the respondent was negligent and that the cryptocurrency was stolen from its account. A preliminary hearing by the Tribunal made orders and findings on 20 June 2022 that there was in fact one consumer claim arising from the respondent’s supply of services and the appellant could not increase the jurisdictional limit of $40,000 under s 79E of the Fair Trading Act 1987 (NSW) by splitting the claim. On 18 July 2022, the jurisdictional limit was raised to $100,000. The next day, the appellant filed a Notice of Appeal seeking to overturn the Tribunal’s decision. On 23 September 2022, the Friday before the Monday hearing, the appellant withdrew its appeal. The respondent sought indemnity costs of the appeal.
Held (making an order that the appellant pay the respondent’s costs on an ordinary basis): (i) Rule 38 of the NCAT Rules was enlivened; each proceeding commenced by the appellant sought damages of over $30,000. Indeed, the appellant sought orders in the appeal for the Tribunal to make “three separate orders in each of the matters up to the jurisdictional limit of $40,000”. Thus, it was not necessary for the respondent to establish special circumstances (at [33]-[37]).
(ii) The appellant argued that the appeal was withdrawn as soon as it became aware of the increase in the jurisdictional limit. The Appeal Panel found that the appellant ought to have known about the increase before 23 September 2022 and should have withdrawn the appeal in a more timely manner. It was not the responsibility of NCAT or the respondent to inform the appellant of the increase in the jurisdictional limit. It is the responsibility of the appellant to ensure that a cause of action is brought in the correct forum. The appeal was of no utility from its commencement given the legislative amendments, and consequently the commencement of the appeal was unreasonable (at [39], [40], [42]).
(iii) Whilst the appeal was rendered futile by an intervening circumstance, it is not unreasonable to expect the appellant’s legal representatives to make reasonable enquiries and reviews of the enabling legislation and to remain informed of legislative amendments. Where circumstances change such that prospects of success are no longer realistic or the appeal is rendered futile, it is incumbent upon a party’s legal representative to assess the change and withdraw the application or appeal. It was not relevant to assess whether the appeal would have succeeded had there been no legislative amendment – the relevant question was whether the appeal should have been commenced at all, or at least withdrawn in a more timely fashion (at [43], [44], [45]).
(iv) The Appeal Panel found that the appellant’s conduct was not so unreasonable to award costs on an indemnity basis. No evidence was led as to when the appellant’s legal representatives became aware of the increase in jurisdictional limit. In the absence of any submission that the legal representatives were aware of the legislative change prior to the withdrawal of the appeal, no delinquency or abuse of process was evident such that an award of indemnity costs was warranted (at [49]-[50]). |
4. Is it a denial of procedural fairness to only address the defects the subject of the original consent order in renewal proceedings, or should the Tribunal have informed the applicant of the option to also bring fresh proceedings regarding other major defects? |
Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49 Consumer and Commercial Division – Home Building G Sarginson, Senior Member; M Gracie, Senior Member
In sum: Where a party will not be estopped or statute-barred from arguing any major defects in a new application under the Home Building Act 1989 (NSW) (HB Act), there is no denial of procedural fairness if the Tribunal in renewal proceedings exclusively considers the defects that were the subject of the original consent orders
Facts: The appellant (owner) purchased a house constructed by the respondent (builder) in 2019, which had an occupation certificate dated 3 May 2019. On 1 March 2021, the owner commenced proceedings under the HB Act in the Tribunal against the builder, which ultimately settled and resulted in the Tribunal making a consent order. On 4 April 2022, the owner filed renewal proceedings under Sch 4 cl 8 of the Civil and Administrative Tribunal Act (NSW) (NCAT Act). The owner provided an expert report, which addressed defects beyond those the subject of the consent orders. The Tribunal made an order that the builder pay the owner with respect to some items, but other items were dismissed. The owner appealed.
Held (dismissing the appeal): (i) Where renewal proceedings involve the HB Act, the Tribunal is not empowered to consider defect claims that were not part of the original proceedings, as the time limits for statutory warranty proceedings strictly apply and cannot be extended under s 41 of the NCAT Act. As the owner chose to settle the original proceedings through consent orders regarding certain defects, there was nothing to indicate that the owner would be estopped from re-litigating the non-major defects he raised in the original proceedings that were not addressed by the consent orders. By the time the owner filed renewal proceedings, he was out of time for non-major defects under the HB Act. However, the owner was (and remains) within time to bring a major defects claim under the HB Act (at [63], [64], [68], [69]).
(ii) Whilst the Tribunal could have considered any major defect item in the expert report as constituting fresh proceedings in addition to the renewal proceedings (subject to the views of the builder and the issue of procedural fairness), the Tribunal’s failure to do so was not an error of law. It would only be an error of law if such a failure constituted a denial of procedural fairness. There were no such circumstances. There was no reason why the owner could not file a fresh application regarding major defects, as no issue of estoppel or res judicata would arise – the owner had not lost any rights he would have had if the Tribunal had considered and ruled upon the major defects with the renewal proceedings. The Appeal Panel was not satisfied that there was a substantial miscarriage of justice within the terms of Sch 4 cl 12 of the NCAT Act or that any of the Collins v Urban [2014] NSWCATAP 17 matters had been established (at [71]-[74], [77]-[79], [86]). |
5. Does the operation of s 10 of the Home Building Act 1989 (NSW) (HB Act) require a signature for a contract to be enforceable? |
Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36 Consumer and Commercial Division – Home Building S Thode, Principal Member; P Molony, Senior Member
In sum: On the proper construction of s 10 of the HB Act, and in the absence of a clear requirement in the provision for a contract to be signed and dated, the only requirements for a builder to enforce a contract under s 10 of the HB Act are that the contract is in writing and with a sufficient description of the work. The protection afforded to consumers under HB Act s 10 is not lessened if a signature is not provided.
Facts: The appellant (owner) entered into an agreement with the respondent (builder) for alterations and additions at the owner’s property. The parties used a Master Builders Association of NSW Residential Building BC4 Contract (Contract), which specified a price and comprised plans and specifications. The Contract was not signed by the parties. Work commenced in about January 2021 and was suspended on 23 February 2021. The builder made a claim in the Tribunal for outstanding progress payments (the builder also made a claim for restitution but led no evidence to support its claim for quantum meruit) and the owner commenced proceedings for the cost of rectification for defective and incomplete works, to be set off against any amount found in favour of the builder. The Tribunal found that the Contract, although unsigned, was enforceable and the progress payments were payable to the builder with a deduction allowed for defects. Both parties appealed the decision. The Appeal Panel dismissed the builder’s appeal in its entirety and allowed the owner’s appeal with regard to the Tribunal’s findings concerning a termite barrier. With regard to another of the owner’s grounds appeal – whether the builder could enforce the unsigned Contract – the Appeal Panel reached different conclusions. The decision of the presiding member (Principal Member Thode) prevailed.
Held (allowing the owner’s appeal in part, though not allowing the appeal in regard to the ground that the builder could not enforce the unsigned Contract): (i) The owner argued that the consequence of the Contract being unsigned and undated was that the builder was in breach of ss 7(1) and 7B of the HB Act and, as a result, s 10(1)(c) of the HB Act operated to prevent the builder from enforcing the Contract against the owner. This was said to be because HB s 7(1) requires a contract to be in writing, signed and dated. Regarding the proper construction of s 10 of the HB Act, the Principal Member held that the plain reading of the section does not require a signature – only for the relevant contract to be in writing and with sufficiently described works. The Tribunal had made a critical finding of fact that the Contract was in writing and with sufficient description of the work that was not challenged on appeal. The Tribunal did not err in concluding that the effect of HB Act s 10 was “plain and unambiguous” and the Principal Member held that the provision was intended to prevent builders from enforcing unwritten contracts that were not sufficiently described (at [26]-[27], [40], [42]-[44], [51]).
(ii) The Principal Member held that the Tribunal had correctly applied a relevant authority, preferring the District Court authority of Hayward v Timilty [2009] NSWDC 54 as it directly considered whether s 10(1)(b) imported the requirements of s 7 of the HB Act, where the relevant contract did not include a cooling off period. The Principal Member distinguished from the recent Appeal Panel decision in Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305 on the basis that the contract considered in Vujica was not in writing and did not contain sufficient description of the work – it did not comply with s 7 of the HB Act in any respect. Acknowledging the critical concern in Vujica that the HB Act is protective consumer legislation, the Principal Member considered that the omission of a signature did not undermine the protective role of s 7 of the HB Act. Further, s 10 of the HB Act protects consumers from uncertain contractual terms and the omission of a signature arguably does not exacerbate this (at [48]-[50], [52]-[53], [59]-[61]).
(iii) Where the evidence strongly suggested that the owner refused to sign the Contract but insisted that the builder carry out the work, it was a “capricious argument” for the owner to then rely on s 10 of the HB Act to prevent the builder from enforcing the contract but require the builder to remedy any defect or breach (at [58], [69]).
(iv) In his dissent, the Senior Member concluded that the unsigned contract was unenforceable, which accorded with the reasoning of the Appeal Panel in Vujica. Vujica directly addressed the question of whether an unsigned contract was a contract in writing for the purposes of s 10(1) of the HB Act and found that the contract was not enforceable under s 10(1)(b) because it was not in writing and did not comply with the requirements set out in s 7(2) of the HB Act. The requirement for a signature enshrines an important and necessary protection for homeowners entering into residential building contracts and provides a construction which is consistent with the context and wording of the HB Act as a whole (at [173], [178], [202], [203]).
(v) The Senior Member did not agree that the Tribunal at first instance should follow the decision in Hayward as it was distinguishable in that there was no absence of a signature in Hayward. The District Court, while a court of the record is not a Superior Court and plays no supervisory or appellate role vis a vis the Tribunal; its decisions are not binding on the Tribunal. The Tribunal should have preferred the decision of Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507 as wholly consistent with the second aspect of the decision in Vujica. Vijuca should have been followed out of comity as the comments in Hayward are obiter and at odds with the reasoning in Vijuca, which was entirely consistent with Dyna and Anjoul v Anjoul [2021] NSWSC 592 (at [180], [181], [183], [185]-[186], [190]). |
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Cui v Lin [2023] NSWCATAP 17 Consumer and Commercial Division – Home Building Decision of: R C Titterton OAM, Senior Member; A Boxall, Senior Member Catchwords: APPEAL – leave to appeal – no question of principle – application to file new evidence – no question of principle |
Lu v Community Association (Costs) [2023] NSWCATAP 18 Consumer and Commercial Division – Strata Schemes Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: COSTS – s 60 Civil and Administrative Tribunal Act 2013 – proceedings not untenable, frivolous or vexatious – no award of costs |
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de Tarle v Newland (Costs No 2) [2023] NSWCATAP 20 Consumer and Commercial Division – Strata Schemes Decision of: S Thode, Principal Member; P H Molony, Senior Member Catchwords: COSTS – costs of appeal – appellant’s position not advanced as a result of successful appeal – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances – application for costs of the appeal dismissed |
Marks v Owners SP 30190 [2023] NSWCATAP 21 Consumer and Commercial Division – Strata Schemes Decision of: Mr S Westgarth, Deputy President; Mr G Burton SC, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – changes to common property – levies – Strata Schemes Management Act 2015 (NSW) ss 24, 106, 108, 232 COSTS – nature of relief requires special circumstances – no special circumstances - Civil and Administrative Tribunal Act 2013 (NSW) s 60, Civil and Administrative Tribunal Rules 2014 (NSW) r 38 |
Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22 Consumer and Commercial Division – Home Building Decision of: G Ellis SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEAL – Leave to extend time to appeal – inadequate grounds – challenge to order that an amount was not payable – no arguable error demonstrated – COSTS – Indemnity costs – Calderbank letter |
The Owners – Strata Plan No 2341 v P & M Sachs Pty Ltd (No 2) [2023] NSWCATAP 23 Consumer and Commercial Division – Strata Schemes Decision of: D Robertson, Senior Member; D Charles, Senior Member Catchwords: COSTS – Civil and Administrative Tribunal Rules, rules 38 and 38A – “the amount claimed or in dispute” on an appeal is the amount in dispute on the appeal, not the amount claimed at first instance |
Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24 Consumer and Commercial Division – Social Housing Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS – From exercise of discretion – Regard to irrelevant considerations – APPEALS – Procedural fairness – Failure to give reasons – Adequacy of reasons – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Quiet enjoyment – order for compensation of breach of quiet enjoyment |
Buyers Club Pty Ltd v Bhasin [2023] NSWCATAP 25 Consumer and Commercial Division – General Decision of: G Curtin SC, Senior Member; G Ellis SC, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – hearing – notice of hearing – no issue of principle – CONTRACTS – implied terms – terms implied in fact – requirements for implication – no issue of principle |
Oueik v Chief Commissioner of State Revenue [2023] NSWCATAP 26 Administrative and Equal Opportunity Division Decision of: I Coleman SC ADCJ, Principal Member; Dr J Lucy, Senior Member Catchwords: APPEAL – Land tax – Where taxpayer defaulted in payment of land tax – Where Tribunal affirmed respondent’s decision not to remit premium component of land tax – Whether Tribunal misunderstood its role – Whether Tribunal erred in exercise of discretion – Whether Tribunal misconstrued s 25 of Taxation Administration Act 1996 (NSW) by failing to recognise that it confers a broad discretion |
Monisse v Chief Commissioner of State Revenue [2023] NSWCATAP 27 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; D Robertson, Senior Member Catchwords: APPEAL – no error of law or leave ground – surcharge land tax imposed on a trustee of a discretionary trust – trust deed not amended within the time required by s5D of the Land Tax Act and the transitional provisions – failure of Commissioner to inform taxpayer of amendments and the option of amending the trust deed |
Timilty Constructions Pty Ltd v Culina [2023] NSWCATAP 28 Consumer and Commercial Division – Home Building Decision of: G Sarginson, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – leave to appeal from decision of Consumer and Commercial Division of NCAT – whether Tribunal failed to consider or give reasons for not accepting evidence – no question of law – alternatively, whether findings against the weight of evidence – new evidence – whether excessive uplift for preliminaries, builder’s margin and contingencies – whether allowance for contingencies was not fair and equitable - Tribunal’s decision varied in part – late application by appellant to vary Tribunal’s money order for a work order |
TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2023] NSWCATAP 29 Consumer and Commercial Division – Commercial Decision of: A Suthers, Principal Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES – Retail Leases Act 1994 (NSW) – Retail and Other Commercial Leases (COVID-19) Regulation 2020 – Landlord entered into possession on ground of unpaid rent – Whether tenant “impacted lessee” for purposes of Regulation – Whether tenant had qualified for the jobkeeper scheme established by the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) – Whether Regulation proscribed action on the ground of a breach of lease occurring before the “prescribed period” – Whether landlord had entered into negotiations “in good faith” – Rent relief in accordance with the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles during COVID-19 – CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Assessment of damages – Reliance damages – Applicable principles – Whether landlord had established that the tenant would not have recouped its expenditure over the term of the lease – ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Procedural fairness – Tribunal taking notice of facts not the subject of evidence – Tribunal erred by failing to draw the facts to the attention of the parties and allowing the parties to make submissions |
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ZZT v Public Guardian [2023] NSWCATAP 31 Guardianship Division Decision of: A Britton, Deputy President; I Coleman, SC ADCJ, Principal Member; F Given, General Member Catchwords: TRIBUNALS – NSW Civil and Administrative Tribunal – joinder of parties to proceedings in respect of application for a guardianship order under the Guardianship Act 1987 (NSW) – REASONS FOR DECISION – obligation to give written reasons for interlocutory decisions made under the Guardianship Act 1987 (NSW) – PROCEDURAL FAIRNESS – whether the Tribunal’s decision to determine an application to be joined as a party to proceedings in the absence of the joinder applicant amounts to a failure to accord procedural fairness – GUARDIANSHIP – whether s 15 of the Guardianship Act operated to prevent the applicant applying to NCAT for a guardianship order – PRACTICE AND PROCEDURE — stay of the decision under appeal |
Falzon v Lockrey [2023] NSWCATAP 32 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS – From exercise of discretion – Regard to irrelevant considerations – APPEALS – From exercise of discretion – Disregard of relevant considerations – APPEALS – Leave to appeal – Principles governing – leave to appeal refused – APPEALS – Procedural fairness – Failure to give reasons – Adequacy of reasons – BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – where the builder breached statutory warranties – work order made against the builder |
Kaho v Parklea Operations Pty Ltd [2023] NSWCATAP 33 Consumer and Commercial Division Decision of: A Suthers, Principal Member; AR Boxall, Senior Member Catchwords: APPEAL – Procedure – Time limits – Refusal of extension of time – LAND LAW – Residential (Land Leases) Communities Act 2013 – section 38 |
Wojciechowska v Commissioner of Police, NSW Police Force [2023] NSWCATAP 34 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; J Lucy, Senior Member Catchwords: APPEALS – question of law – administrative review – Government Information – denial of procedural fairness – actual and apprehended bias – whether Tribunal has jurisdiction to determine an application under the Government Information (Public Access) Act 2009 – transfer of proceedings to the Supreme Court – confidentiality orders – reversal of onus – application of s 105 of the Government Information (Public Access) Act 2009 (NSW) – no evidence |
S&J Harris Building Services Pty Ltd v Jacques [2023] NSWCATAP 35 Consumer and Commercial Division – Home Building Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – costs – application of r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) – application of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) |
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McCrudden v Dunstan [2023] NSWCATAP 37 Consumer and Commercial Division – Strata Schemes Decision of: S Westgarth, Deputy President; A Suthers, Principal Member Catchwords: APPEAL – costs of the appeal following withdrawal of the appeal and dismissal |
Lenux v The Owners – Strata Plan No. 88786 [2023] NSWCATAP 38 Consumer and Commercial Division Decision of: A Suthers, Principal Member; A Balla ADCJ, Principal Member Catchwords: APPEAL – appeal lodged out of time – from decision in Consumer and Commercial Division – no question of law or basis for a grant of leave |
Wang v Hure [2023] NSWCATAP 39 Consumer and Commercial Division – Residential Tenancy Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES – end of fixed term residential tenancy – no repudiation of tenancy where landlord gives notice of termination in accordance with s 84 of the Residential Tenancies Act – tenant gives ineffective notice of termination before end of fixed term – no rent payable beyond end of fixed term – s 110 of the Residential Tenancies Act applies – APPEALS – procedural fairness – leave to appeal – whether against the weight of evidence – whether not fair and equitable – no issue of principle – extension of time refused |
Srisivalingam v O'Leary [2023] NSWCATAP 40 Consumer and Commercial Division – Residential Tenancy Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: APPEALS – whether denial of procedural fairness where leave had not been given to amend claim – adequacy of reasons – finding of fact not supported by the evidence – LEASES AND TENANCIES – application of s 52 of the Residential Tenancies Act 2010 |
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Kora v Ian’s Roofing Pty Ltd [2023] NSWCATAP 42 Consumer and Commercial Division – Home Building Decision of: K Rosser, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – question of law – no issue of principle – leave to appeal – no issue of principle |
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Chapman v Nicolosi [2023] NSWCATAP 44 Consumer and Commercial Division – Home Building Decision of: I R Coleman SC ADCJ, Principal Member; G Curtin SC, Senior Member Catchwords: CONTRACTS – construction – interpretation – background – regard must be had to the terms of the contract – no issue of principle – ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal – from finding of fact – no evidence – ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal – credibility of witness – finding against credit flawed by a misapprehension of concession made and misapprehension of evidence |
Sinclair v Taree City Car Sales Pty Ltd [2023] NSWCATAP 45 Consumer and Commercial Division – Motor Vehicles Decision of: L Wilson, Senior Member; A Lo Surdo SC, Senior Member Catchwords: EVIDENCE – whether the Tribunal mischaracterised the nature of the expert evidence – whether the decision of the Tribunal was against the weight of the evidence – APPEALS – whether leave to appeal should be granted – whether the appellant has suffered a substantial miscarriage of justice |
Laus v Kukreti [2023] NSWCATAP 46 Consumer and Commercial Division – General Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – whether leave to appeal should be granted – no question of principle |
ZBG v NSW Trustee and Guardian [2023] NSWCATAP 47 Guardianship Division Decision of: A Britton, Deputy President; C P Fougere, Principal Member; J L Newman, General Member Catchwords: GUARDIANSHIP – power to revoke a financial management order made under Guardianship Act – APPEALS – NCAT – exercise of power conferred by s 80(3) of the Civil and Administrative Tribunal Act 2013 to deal with “internal appeal” by way of a new hearing |
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Zahrouni v Vesta Homes Pty Ltd [2023] NSWCATAP 49 Consumer and Commercial Division – Home Building Decision of: G Sarginson, Senior Member; M Gracie, Senior Member Catchwords: BULDING AND CONSTRUCTION – Home building – Work orders of Tribunal – Renewal of proceedings in Tribunal – Scope and nature of renewal proceedings |
Ferella v Chief Commissioner of State Revenue [2023] NSWCATAP 50 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – no errors of law – leave to appeal on the merits refused – appeal dismissed – REVENUE LAW – Land Tax – exemption for land used for primary production under s 10AA of the Land Tax Management Act – onus of proof under s 100(3) Taxation Administration Act 1956 – whether dominant use was the maintenance of horses for the purpose of selling them or their natural increase – relevance of intention – whether the use of the land has a significant and substantial commercial purpose or character, and is engaged in for the purpose of profit on a continuous or repetitive basis |
Moriarty v Moriarty [2023] NSWCATAP 51 Consumer and Commercial Division – Residential Tenancy Decision of: A Suthers, Principal Member Catchwords: APPEAL – Application for a Stay – allegation Tribunal acting beyond jurisdiction due to impermissible exercise of federal jurisdiction |
Vidler v Lee t/as Northern Rivers Landscaping [2023] NSWCATAP 52 Consumer and Commercial Division – Home Building Decision of: I R Coleman SC ADCJ, Principal Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – appeal from Consumer and Commercial Division – no question of law – leave to appeal – new evidence – expert evidence – weight to be afforded expert evidence where there has been non-compliance by both parties with Procedural Direction 3 – unjust result - remitter |
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YDB v NSW Land and Housing Corporation [2023] NSWCATAP 55 Consumer and Commercial Division – Social Housing Decision of: S Thode, Principal Member; E Bishop SC, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative tribunals – NSW Civil and Administrative Tribunal – adequacy of reasons for interlocutory decisions – APPEALS – extension of time decision and set aside decision – discretionary decisions – leave to appeal from interlocutory decisions – LEASE AND TENANCIES – social housing – termination of tenancy – illegal activity – set aside application |
Thomas v Slade [2023] NSWCATAP 56 Consumer and Commercial Division – Residential Tenancy Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES – residential tenancies – meaning of s 51(3)(c) Residential Tenancies Act 2010 (NSW) – APPEALS – leave to appeal – whether decision against the weight of evidence – whether decision not fair and equitable |
Liem v Brenner and Dowell [2023] NSWCATAP 57 Consumer and Commercial Division – Residential Tenancy Decision of: Hon D Cowdroy AO, KC, Principal Member; G Burton SC, Senior Member Catchwords: REAL PROPERTY – RESIDENTIAL TENANCY – rent reduction for loss of facilities – water and mould damage – compensation for damage to goods – Residential Tenancies Act 2010 (NSW) ss 44, 187, Civil and Administrative Tribunal Act 2010 s 41 |
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Baranowski v Walker [2023] NSWCATAP 59 Consumer and Commercial Division – Motor Vehicles Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: APPEALS – Leave to appeal – no substantial miscarriage of justice – leave to appeal refused |
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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. |
