NCAT Appeal Panel Decisions Digest Issue 3 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 March 2023:
Chapman v Nicolosi (No 2) [2023] NSWCATAP 73: Where an Appeal Panel remits proceedings to the Tribunal, the power to remit to a differently constituted Tribunal should be used sparingly. The Appeal Panel found that the Tribunal had determined an “ultimate issue” on the basis of an adverse credit finding that was mistaken and thus it was appropriate to remit to a differently constituted Tribunal. ZXJ v ZXK (No 2) [2023] NSWCATAP 76: The Appeal Panel exercised its power to award fixed costs after determining it was possible to do so in a logical, fair and reasonable manner, and after considering the factors that weighed in its favour. The Appeal Panel only awarded certain costs claimed and at varying discounts. ZZI v Holdsworth & University of New Castle [2023] NSWCATAP 78: The Appeal Panel dismissed the appeals from an evaluative decision of the Tribunal, finding that no party could establish that the Tribunal’s findings were vitiated by legal error. The Tribunal had provided thorough, logical and comprehensive reasons for each material finding of fact on which it made its evaluative determinations, and the mere possibility that reasonable minds could have differed as to the findings or inferences that may have been drawn was not a basis to challenge the primary decision. McIntosh v Lennon [2023] NSWCATAP 83: The Appeal Panel held that the legal meaning of the definition of “owner-builder” in Sch 1 to the Home Building Act 1989 (NSW) (HBA) includes owner-builders who (in breach of the HBA) do not obtain owner-builder permits. In the alternative, the definition of “owner-builder” should be read as if the words “or is required to do” were inserted, to mean “a person who does, or is required to do, owner-builder work under an owner-builder permit issued to the person for that work.”
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Where proceedings are remitted by the Appeal Panel, should the proceedings be remitted to the same Tribunal or a differently constituted Tribunal? | Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 Consumer and Commercial Division – Home Building I R Coleman SC ADCJ, Principal Member; G Curtin SC, Senior Member
In sum: The power to remit proceedings to a differently constituted Tribunal should be used sparingly and only when the interests of justice require it. An adverse finding of credit that is used as a basis to determine an ultimate issue is a “classic circumstance” in which remitted proceedings should be determined by a differently constituted Tribunal.
Facts: In its principal decision, the Appeal Panel found that the Tribunal had erred making a credit finding against the appellant (builder) and his witness. The Tribunal’s finding in that regard was a “fundamental fact” and, given it was mistaken, the Appeal Panel found that the Tribunal’s decision on that issue should not stand, and it should be remitted to the Tribunal to be decided again (alongside other issues the subject of the appeal). The issue remained as to whether the remitted proceedings should be heard by the same Tribunal or a differently constituted Tribunal.
Held (remitting the proceedings to a differently constituted Tribunal): (i) The Appeal Panel drew on and summarised court authorities on the principles to be considered when determining whether to remit a matter to the same or a differently constituted Tribunal. Following Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, the Appeal Panel stated it should only exercise the power to remit proceedings to a differently constituted Tribunal sparingly and only if required by the interests of justice (at [16]-[22], [23], [24]).
(ii) The builder argued that the Tribunal’s rejection of his case following a determination of his credit created a perception that it infected other matters determined by the Tribunal, and so it would be inappropriate for the remitted proceedings to be determined by the original Tribunal. The Appeal Panel held that the Tribunal had decided an “ultimate issue” substantially on the basis of its adverse credit findings and, given that was one of the issues to be remitted, the remitted proceedings should be heard by a differently constituted Tribunal. However, the Appeal Panel rejected the submission that a perception had been created that other matters determined by the Tribunal had been infected by the adverse credit findings and any associated contention of apprehended bias (at [6]-[7], [25], [26]). | 2. Where it is appropriate to make a costs order, in what circumstances and how should the power to make a fixed costs order be exercised? | ZXJ v ZXK (No 2) [2023] NSWCATAP 76 Guardianship Division A Britton, Deputy President; A Boxall, Senior Member; M Bolt, General Member
In sum: In the Appeal Panel’s view, it was possible to exercise the power to award fixed costs in a logical, fair and reasonable manner. In light of this and given the protracted nature of proceedings, the likelihood of significant costs already incurred by each party, and the history of conflict between the parties that would likely continue in any costs assessment and cause further delay and expenditure, the Appeal Panel awarded fixed costs. The Appeal Panel only awarded certain costs claimed, applying varying discounts, to reach a total sum of $32,312.25.
Facts: The Tribunal proceedings involved three applications by the appellant’s two daughters (the Daughters), all of which were dismissed. The appellant made an application seeking costs of the Tribunal proceedings, but this was also dismissed by the Tribunal; the appellant appealed from that decision. In its principal decision, the Appeal Panel allowed the appeal in part, set aside the Tribunal’s costs decision, concluded that there were “special circumstances” warranting an order of costs in the Tribunal proceedings and directed the parties to provide submissions on the amount of costs they contended the Daughters ought to be ordered to pay the appellant with regard to “costs thrown away … in preparing to address issues raised by the Daughters unrelated to the appellant’s capacity to manage her financial affairs”. The appellant sought costs to be fixed in the amount of $82,000; the Daughters asserted the amount was excessive and argued costs should be fixed at $22,000.
Held (ordering costs in a fixed sum): (i) Consistent with the approach adopted by other Appeal Panels, the Appeal Panel applied the principles articulated by the courts regarding s 98 of the Civil Procedure Act 2005 (NSW) to its exercise of the power to fix costs under s 60(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Those principles were considered within the broader statutory framework of the NCAT Act, including the “guiding principle” as set out in s 36 of the NCAT Act (at [13]-[16]).
(ii) Factors weighing in favour of exercising the discretion to order fixed costs were considered by the Appeal Panel to be: the protracted nature of the Tribunal proceedings; that each party was likely to have incurred significant costs; and that the history of conflict between the parties indicated any costs assessment would likely be contested, causing further delay and expenditure. For these reasons, and in light of the Appeal Panel’s view that it was possible to exercise the power in a logical, fair and reasonable manner, the Appeal Panel exercised its power to fix costs (at [24]-[26]).
(iii) The Appeal Panel did not award costs prior to the date on which the appellant was first required to address issues beyond the capacity issue or costs for work undertaken because of an alleged overlap between the Tribunal proceedings and proceedings in other jurisdictions. It also did not award costs for briefing senior counsel – whilst the “stakes” were high regarding the appellant’s interests, the Tribunal proceedings did not necessarily raise complex questions of fact or law that warranted retaining senior counsel. The Appeal Panel did award costs at varyingly discounted rates over varying time periods for work undertaken by the appellant’s solicitor and junior counsel. The Daughters were ordered to pay costs to the appellant of $32,312.25 (at [32], [35], [36]-[37]). | 3. When is it appropriate to allow an appeal from an evaluative decision on the basis of a “no evidence” challenge? | ZZI v Holdsworth & University of New Castle [2023] NSWCATAP 78 Administrative and Equal Opportunity Division I R Coleman SC ADCJ, Principal Member; Dr R Dubler SC, Senior Member
In sum: If all that can be established is that other findings of fact were available on the evidence, a “no evidence” challenge will fail. An appellant must be able to establish that a material finding of fact was made in the absence of evidence that would constitute error on a question of law in order to enliven s 80 of the Civil and Administrative Tribunal Act 2013 (NSW). The parties were unable to demonstrate that the Tribunal’s decision was vitiated by any such error that would invite appellate intervention.
Facts: The appellant (ZZI) was a PhD student in a program conducted by the second respondent (the University), supervised by the first respondent (Professor Holdsworth). In April 2018, ZZI lodged a complaint with the Anti-Discrimination Board that she had been sexually harassed by Professor Holdsworth and been discriminated against on the ground of sex by Professor Holdsworth and the University in contravention of the Anti-Discrimination Act 1977 (NSW) (AD Act). In January 2020, ZZI lodged a further complaint with the Board alleging that she had been victimised by the University because she had made a complaint about Professor Holdsworth. In May 2021, ZZI’s PhD candidacy was terminated. On 24 May 2022, the Tribunal found that one complaint of sexual harassment was substantiated but dismissed the balance of the complaints of sexual harassment and the complaints of victimisation. ZZI appealed against the dismissal of the complaints; Professor Holdsworth and the University appealed against the complaint of sexual harassment that the Tribunal upheld.
Held (refusing leave to appeal; dismissing the appeals): (i) Both appeals related to an “evaluative decision” of the Tribunal. An evaluative decision is distinct from a discretionary decision – it “is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact” (Hinch & Macquarie Broadcasting Holdings Limited v Attorney General (Vic) [1987] HCA 56 at [19]). The Tribunal’s decision did not involve the exercise of discretion and as a result, any ground which relies upon a challenge to the “weight” afforded by the Tribunal to certain facts cannot advance an appeal on a question of law. Appellate bodies must show restraint in disturbing evaluative decisions and any “second opinion” of the Appeal Panel has no role in the determination of the appeals (at [175], [181], [182]).
(ii) In most evaluative determinations, there is scope for reasonable minds to differ as to the inferences which may be drawn from the same set of primary facts. Here, the ambit of reasonable disagreement was broad and neither ZZI nor Professor Holdsworth and the University established anything more than the possibility that the Tribunal may have drawn other inferences. ZZI was unable to establish that the Tribunal had failed to take into account relevant considerations or taken irrelevant considerations into account, identified or asked the wrong question or that the Tribunal had applied a wrong principle of law; neither party asserted procedural unfairness. Rather, the Tribunal did not decide the issue in the way that ZZI sought. No error on a question of law was established and thus there was no basis for appellate intervention with the Tribunal’s findings. Each finding of fact made by the Tribunal was capable of being established on the evidence before it and the Tribunal’s decision was rational, logical and cogently explained (at [231], [232]-[233], [254], [263], [288], [291], [368], [412]-[413], [417]). | 4. Does the definition of “owner-builder” in the Home Building Act 1989 (NSW) (HBA) include owner-builders who (in breach of the HBA) do not obtain owner-builder permits? | McIntosh v Lennon [2023] NSWCATAP 83 Consumer and Commercial Division – Home Building G Curtin SC, Senior Member; D Fairlie, Senior Member
In sum: The legal meaning of the definition of “owner-builder” in Sch 1 to the HBA includes owner-builders who do owner-builder work without obtaining an owner-builder permit. The context and general purpose of the owner-builder provisions of the HBA promote this legal meaning over the grammatical or literal meaning. Any literal discomfort is to be preferred to allowing a mischief that Parliament intended to deal with. In the alternative, the insertion of the words “or is required to do”, so that the definition would read “owner-builder means a person who does, or is required to do, owner-builder work under an owner-builder permit issued to the person for that work” corrects a simple, grammatical drafting error which would otherwise defeat the object of the provision.
Facts: In late 2012 or early 2013, the appellant decided to demolish and rebuild a residential property he had purchased in 1995. Ultimately, the appellant resolved to build the house as an owner-builder. On 18 December 2013, the appellant lodged a development application (DA). On 6 March 2014, the DA was conditionally approved, requiring either the supply of the builder’s name and licence number and home warranty insurance (HOWI) insurer or the name of the owner-builder and any required owner-builder permit number. Upon receiving approval, the appellant employed tradesmen to carry out the building works. The appellant lodged an application for HOWI in a builder’s name but without the builder’s knowledge or consent. On 23 April 2014, a Construction Certificate was issued to the appellant; on 16 June 2016, a Final Occupation Certificate was issued. Later in 2016, the appellant sold the property. In early 2020, the then-owners decided to sell the property. In May 2020, the respondents inspected the property and on 8 May 2020, a pre-purchase property and timber pest inspection was carried out on behalf of the respondents. The report identified certain defects. The conveyance was completed on 24 July 2020. On 27 July 2020, the respondents emailed the appellant indicating that certain defects had worsened and sought rectification by the appellant. The appellant was unsuccessful in organising repairmen and was also unsuccessful in having the HOWI insurance transferred into his name. The respondents carried out rectification work at their expense and commenced proceedings in the Tribunal on 18 February 2021. The Tribunal found that the appellant was an owner-builder for the purposes of the HBA and the warranties could be enforced against the appellant for the defective works which amounted to major defects.
Held (refusing leave to appeal; dismissing the appeal): (i) The appellant argued that the words “under an owner-builder permit issued to the person” should not be made superfluous or insignificant and the Appeal Panel should strive to give meaning to them. However, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], the Appeal Panel acknowledged that the legal meaning of words may differ from their grammatical meaning. Equally, the Appeal Panel did not intend to treat the words as superfluous or significant – the words could be given a pertinent meaning and construction (at [117], [118], [134]).
(ii) The appellant’s contention that Parliament intended to exclude owner-builders who undertook residential building work without a permit in the protective scheme would produce a plainly unjust result and would fail to meet a significant and serious objective of the HBA; there is no logical or rational reason from excluding those successors in title from the benefit of statutory warranties. Whilst not bound by the decision in Gunn & Anor v Steain & Ors [2003] NSWSC 1076, as it concerned a now-repealed definition of “owner-builder”, the Appeal Panel found the Supreme Court’s reasoning persuasive and saw no substantive difference between the two wordings. The Appeal Panel held that the proper interpretation – being the legal meaning to be given to those words, as opposed to the grammatical – of the definition of “owner-builder” includes owner-builders who do owner-builder work without being issued a permit for that work. Consequently, the Appeal Panel commented in obiter that the legal meaning of ss 32AA, 95(2) and 127A of the HBA would also differ from their grammatical meaning to achieve the same objective (at [121], [126], [140], [148], [149], [160]).
(iii) The Appeal Panel considered that its legal meaning of “owner-builder” was consistent with the purpose of the provisions of the HBA: to provide a form of protection for successors in title to owner-builders who undertake owner-builder work, including those who do so in breach of the HBA without obtaining an owner-builder permit. This meaning supports the manifest need for consumer protection in such circumstances. The Appeal Panel stated that the absence of any insurance held by the appellant strengthened its reading of the definition (at [151], [153], [158]).
(iv) In the alternative, the Appeal Panel held that it would read words into the definition to include owner-builders who do owner-builder work without a permit. The Appeal Panel found that the conditions to read words into statute (as set out in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [22]-[25]) had been met. It was the Appeal Panel’s opinion that the drafters of the provision had inadvertently overlooked the eventuality in this case, and where the rights and remedies were otherwise already granted by Parliament, the reading-in of the words was necessary in order to achieve a significant purpose of the HBA’s owner-builder provisions (at [175], [176]-[182], [188]). | | | Probst v Commissioner of Police [2023] NSWCATAP 61 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; S Thode, Principal Member Catchwords: APPEAL – procedural fairness-offer of adjournment refused – evidence concerning PTSD and alcohol use disorder – whether there was a risk to public safety in holding a firearms licence – application of Firearms Act – whether there was an error of law or a leave ground – all grounds rejected | Rhodes v SES Village Pty Ltd [2023] NSWCATAP 62 Consumer and Commercial Division – Residential Communities Decision of: S Thode, Principal Member; M Deane, Senior Member Catchwords: APPEAL – Procedure – Time limits – Refusal of extension of time | | Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: EQUAL OPPORTUNITY – Victimisation – Disability Discrimination – whether the Tribunal mischaracterised the evidence, made unreasonable findings of fact and misapplied legal principles – whether the Appellant was denied procedural fairness because matters were not put to witnesses in cross-examination – the rule in Browne v Dunn – whether leave to appeal should be granted to challenge factual findings – whether the Tribunal mischaracterised the Appellant’s defence – whether the Tribunal denied procedural fairness to the Appellant by its characterisation of the pleaded case in light of the Appellant’s asserted summary of its understanding of the Appellant’s case – whether order of the Tribunal reinstating the Respondent to her former position was beyond the power provided by s 108(2) of the Anti-Discrimination Act 1977 (NSW) | Tuitea v Liu [2023] NSWCATAP 65 Consumer and Commercial Division – Residential Tenancy Decision of: A Suthers, Principal Member Catchwords: APPEAL – reinstatement after dismissal for non-appearance – principles to be applied where extension of time required | Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66 Consumer and Commercial Division – Strata Schemes Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: LAND LAW – strata title – common property – maintenance and repair of common property – action for damages by lot owner – proceedings commenced more than two years after the owner became aware of loss – extension of time – the temporal element in s 106(6) of the Strata Schemes Management Act 2015 not a jurisdictional fact – time to extend that period of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 – ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – jurisdiction and power to extend time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 – Tribunal may extend time despite any provision to the contrary under legislation conferring general jurisdiction – Tribunal may extend time even if the relevant period of time has expired – s 41 beneficial legislation – no warrant to impose limitations on the power expressed in s 41 | | Simjanovska v Dogan [2023] NSWCATAP 69 Consumer and Commercial Division – Residential Tenancy Decision of: G Sarginson, Senior Member; M Gracie, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Termination of tenancy – No grounds notice to terminate – s 85 Residential Tenancies Act 2010 – Extension of time for landlord to commence proceedings – Conclusion of hearing on the papers – Whether denial of procedural fairness | Rivera v Taipan Management Co [2023] NSWCATAP 70 Consumer and Commercial Division – Residential Tenancy Decision of: G Blake AM SC, Senior Member; J Currie, Senior Member Catchwords: APPEALS – Leave to appeal – Principles governing – leave to appeal refused – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – holding fees – claim for repayment of holding fee – tenant refused to enter into the residential tenancy agreement – application dismissed | FCZ v Illawarra Shoalhaven Local Health District [2023] NSWCATAP 71 Administrative and Equal Opportunity Division Decision of: I Coleman, SC ADCJ Principal Member; C Mulvey, Senior Member Catchwords: ADMINISTRATIVE LAW – health information – authorised representative – disclosure of health information – whether contravention of health protection principles – whether non-compliance otherwise permitted – whether action should be taken | | Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 Consumer and Commercial Division – Home Building Decision of: I R Coleman SC ADCJ, Principal Member; G Curtin SC, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – internal appeal – remittal of proceedings to Tribunal – remittal to the Tribunal as originally constituted or to a differently constituted Tribunal – considerations | White v Commissioner of Police, NSW Police Force [2023] NSWCATAP 74 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; A Balla ADCJ, Principal Member Catchwords: APPEALS – application for firearms licence – application refused – no error of law nor leave ground – whether new evidence to be admitted | Watkinson v Western Sydney University [2023] NSWCATAP 75 Administrative and Equal Opportunity Division Decision of: S Westgarth, Deputy President; A Balla ADCJ, Principal Member Catchwords: ADMINISTRATIVE LAW – access to government information – question of law – leave to appeal | ZXJ v ZXK (no 2) [2023] NSWCATAP 76 Guardianship Division Decision of: A Britton, Deputy President; A Boxall, Senior Member; M Bolt, General Member Catchwords: COSTS – principles informing the exercise of power to fix costs conferred by s 60(4) of the Civil and Administrative Tribunal Act 2013 (NSW) | Martin & Sidgreaves v Big Country Developments Pty Limited [2023] NSWCATAP 77 Consumer and Commercial Division – Commercial Decision of: I R Coleman, SC ADJC Principal Member; M Gracie, Senior Member Catchwords: APPEAL – costs of successful appeal and unsuccessful cross appeal – application of NCAT Rules 38 and 38A – usual order as to costs – application for indemnity costs of appeal – application for indemnity costs of proceedings before Tribunal – Calderbank offers – apportionment of costs of appeal where certain grounds were amended or not pursued – whether separate costs order appropriate for unsuccessful and separate application in proceedings while Tribunal’s decision was reserved – consideration of consent orders dealing with parties’ costs in the Tribunal on transfer of proceedings from the Local Court | ZZI v Holdsworth & University of Newcastle [2023] NSWCATAP 78 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: APPEAL – whether appeals by each party against evaluative determination of Tribunal pursuant to Anti-Discrimination Act 1977 (NSW) should be allowed – whether leave to appeal should be granted to any party – whether leave should be granted to adduce further evidence | Rigby v Oxenford [2023] NSWCATAP 79 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEALS – Constructive failure to exercise jurisdiction – Failure to address a material issue and material evidence – failure not established – APPEALS – Leave to appeal – Principles governing – leave to appeal refused – APPEALS – Procedural fairness – Bias or apprehension of bias – prejudgment not established – APPEALS – Procedure – Time limits – Extension of time – application granted – BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – where the builder breached statutory warranties – money order made against the builder | | Rona v Opes Lifestyle Homes Pty Ltd (No 2) [2023] NSWCATAP 81 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; C Mulvey, Senior Member Catchwords: COSTS – whether rules 38 and 38A Civil and Administrative Tribunal Rules 2014 apply – whether special circumstances exist – claim in dispute under $30,000 | The Owners – Strata Plan No. 77109 v Gokani-Robins Pty Ltd [2023] NSWCATAP 82 Consumer and Commercial Division – Strata Schemes Decision of: M Harrowell, Deputy President; G Ellis SC, Senior Member Catchwords: STRATA LAW – validity of by-law – s 139(1) Strata Schemes Management Act 2015 (SSMA), by-law must not be harsh, unconscionable or oppressive – operation of s 136(2) of the SSMA and relationship with ss 139(1) and 150 (power of Tribunal to declare by-law invalid) – by-law permitting carrying out of works determined by owners corporation in their “reasonable opinion”, entry into the lot owner’s property to carry out such works, obligation to indemnify for costs and deprivation of voting rights if amounts demanded are not paid | McIntosh v Lennon [2023] NSWCATAP 83 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – owner – father purchases property in the name of his daughter – resulting trust – presumption of advancement rebutted – beneficiary of resulting trust within the definition of “owner” in the Home Building Act – BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – owner-builder – owner-builder undertakes residential building work without an owner-builder permit – definition of owner-builder in the Home Building Act – proper interpretation of definition of owner-builder – legal meaning differs from literal meaning – definition includes owner-builders who undertake residential building work without a permit – alternatively, permissible to read definition as if it contained additional words – principles to apply when reading additional words into statute | Paparizos v St George Community Housing Ltd [2023] NSWCATAP 84 Consumer and Commercial Division – Social Housing Decision of: S Westgarth, Deputy President; G Burton SC, Senior Member Catchwords: APPEAL – failure to satisfy onus of proof – procedural unfairness – no error of law or other ground of appeal established | AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; M Deane, Senior Member Catchwords: APPEAL – Notice of Appeal – filed outside of the prescribed time – whether extension of time should be granted – no sound recording or transcript of the Tribunal’s oral reasons for decision filed – extension of time refused | | O’Loughlin v Commissioner for Fair Trading [2023] NSWCATAP 87 Occupational Division Decision of: Armstrong J, President; E Bishop SC, Senior Member Catchwords: OCCUPATIONAL – application for restoration of builder’s licence previously held by appellant – whether failure to renew due to inadvertence – whether just and equitable to restore licence – application for new builder’ licence or supervisor certificate – necessary qualifications for a licence or certificate – transitional arrangements – LEAVE TO APPEAL – where grounds for leave to appeal are not established | | The Owners – Strata Plan No. 54545 v Hudson [2023] NSWCATAP 89 Consumer and Commercial Division – Strata Schemes Decision of: L Wilson, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – COSTS – appeal from Consumer and Commercial Division – hearing on the papers – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – discretion – whether special circumstances – late withdrawal of application – whether appellant unnecessarily disadvantaged by conduct of the respondents – failure to articulate purported errors of law – principles in House v The King – no resolution passed by appellant to incur legal expenses – claim for legal expenses – no leave sought by appellant to be legally represented before Tribunal – ghost writing lawyer | Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90 Consumer and Commercial Division – Home Building Decision of: S Westgarth, Deputy President; G Sarginson, Senior Member Catchwords: APPEAL – whether Tribunal lacked jurisdiction having regard to the date of lodgement of the application – jurisdiction point not raised at first instance – calculation of quantum – whether there was procedural fairness – whether homeowners made a claim for breach of representations including whether representations were an implied term of the contract | FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member; E Bishop SC, Senior Member Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 (NSW) – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 – Prohibition on disclosure of information contained in a report made in good faith – Whether there is a requirement for positive proof that a report was made in good faith – Whether the Tribunal can be satisfied that a document is a report to which s 29 applies, or includes information contained in such a report, in the absence of the certificate from the Secretary for which s 29(1A) provides – ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 (NSW) – Whether the Tribunal has jurisdiction to order an agency to create a new record pursuant to s 75 – ADMINISTRATIVE LAW – Procedural fairness – Where the Council proceeded on the basis that a document was not before the Tribunal – Where the Tribunal considered the document and determined that the document should be disclosed, subject to redactions – Whether the Council was denied procedural fairness when it was apparent from other findings of the Tribunal that the Council’s misunderstanding had no impact upon the Tribunal’s decision – No denial of procedural fairness | Su v Agarwal [2023] NSWCATAP 92 Consumer and Commercial Division – Residential Tenancy Decision of: A Suthers, Principal Member; G K Burton SC, Senior Member Catchwords: APPEAL – procedural fairness – requires transcript of proceedings to be assessed – adequacy of reasons – remitter to differently-constituted Tribunal | Dubow v Liddell [2023] NSWCATAP 93 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; E Bishop SC, Senior Member Catchwords: CONTRACTS – oral contract – formation – offer and acceptance – terms of contract – sufficiency of evidence – no question of principle – CIVIL PROCEDURE – hearings – procedural fairness – excessive intervention – indicia of – no question of principle | Deaves v Sigma Group NSW Pty Limited [2023] NSWCATAP 94 Consumer and Commercial Division – Home Building Decision of: P Durack SC, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – decision of Consumer and Commercial Division – purchase of a lot in a strata scheme upon which a dwelling was to be built – alleged breach of statutory warranties in s 18B of the Home Building Act 1989 (NSW) in respect of the dwelling as built – claims by purchaser against the developer and the builder under ss 18C and 18D –purchaser a successor in title within the meaning of that term in ss 18C and 18D – alleged completion of purchase of lot with knowledge of building defects – whether the Tribunal was correct to consider that decision by purchaser to complete with notice or assumed knowledge of defects in light of the non-exercise of potential redress under the conveyance contract between the purchaser and the developer precluded application of statutory warranties – jurisdiction of Tribunal in relation to additional claim under the Design and Building Practitioners Act 2020 (NSW) – questions of law raised on appeal – appeal upheld – costs – remitter to differently constituted Tribunal | Kaur v Sharma [2023] NSWCATAP 96 Consumer and Commercial Division – Residential Tenancy Decision of: Hennessy ADCJ, Deputy President Catchwords: LEASES AND TENANCIES – where Tribunal has extended time to make an application for a warrant for possession of the premises – whether that order should be stayed – merits of the substantive appeal and balance of convenience | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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