NCAT Appeal Panel Decisions Digest Issue 4 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 April 2023:
Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104: An Appeal Panel held that there were special circumstances which made a costs order against Ms Wojciechowska appropriate, even in circumstances where the initial proceedings were brought under the Government Information (Public Access) Act 2009 (NSW), and acknowledging that parties should not be deterred from acting to access government information because of concerns about an award of costs. The Appeal Panel awarded costs in a lump sum at a discount of 20%. Durastyle Homes Pty Limited v Gosling [2023] NSWCATAP 111: An Appeal Panel refused to exercise its discretion under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend time in circumstances where the Notice to Appeal was lodged two days late as a result of an error by the appellant’s solicitor, where there was no prejudice to the respondent and where the appellant’s prospects of success were not more than merely arguable. On balance, the Appeal Panel was not satisfied that the interests of justice demanded a departure from the default position that time limits should be strictly enforced. McKerlie v Leeser [2023] NSWCATAP 112: An Appeal Panel refused to exercise its discretion to refer to the Supreme Court the question of whether proceedings under the Residential Tenancies Act 2010 (NSW) were, by nature, inquisitorial or adversarial. The Appeal Panel was of the view that the default position in proceedings in the Consumer and Commercial Division is that proceedings are adversarial in nature, although an inquisitorial (but not purely inquisitorial) approach may be taken.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Where there are special circumstances which make a costs order appropriate, in what circumstances and how should the power to make a fixed costs order be exercised? | Wojciechowska v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATAP 104 Administrative and Equal Opportunity Division T Simon, Principal Member; J Lucy, Senior Member
In sum: The rule in s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) was enlivened with regard to the matters set out in subs-ss (c), (d), (e), (f) and (g) of s 60(3) of the NCAT Act. An Appeal Panel was satisfied that a lump sum costs order against Ms Wojciechowska would be appropriate and that it had the ability to determine the reasonableness of costs incurred and the appropriateness of the sum to be awarded. The Appeal Panel deducted an amount of 20% from the Commissioner’s costs.
Facts: The appellant applied to the Tribunal for review of a decision made by the respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The appellant unsuccessfully appealed to the Appeal Panel. The respondent made an application for costs (which had been foreshadowed in the respondent’s reply to the appeal), relying on sub-ss (c), (d), (e), (f) and (g) of s 60(3) of the NCAT Act.
Held (making a lump sum costs order): (i) The Appeal Panel found that there were special circumstances warranting the award of costs. With regard to s 60(3)(c): many of the appellant’s 35 purported grounds of appeal were repetitive, unsupported, not elaborated on in written submissions and amounted to no more than assertions; not a single ground succeeded. The appellant also unsuccessfully sought a transfer of the proceedings to the Supreme Court and for the Principal Member on the Appeal Panel to recuse herself, claiming the Principal Member was “manipulating the public record” and was dishonest, and made allegations of corruption in the Tribunal. With regard to s 60(3)(d): the appeal should not have been complex but was made so because of the number of grounds raised and pressed. With regard to s 60(3)(e): the appellant unsuccessfully raised a claim (in the primary proceeding and on appeal) that NCAT lacked jurisdiction. That claim had previously been made by the appellant and rejected by two differently constituted Appeal Panels and a Tribunal at first instance. The claim was lacking in substance (as was the appeal overall) and the appellant was on notice of that from the previous decisions. With regard to s 60(3)(f): despite being self-represented, the appellant had experience in NCAT and was familiar with its processes, including being at least aware of the possibility that the respondent could make a costs application (indeed, this was foreshadowed in the respondent’s reply to the appeal). The appellant failed to comply with her obligations under s 36 of the NCAT Act and failed to progress the appeal in an orderly way (at [16]-[25], [26], [27]-[31], [33]-[40]).
(ii) Taking it into consideration under s 60(3)(g), the Appeal Panel acknowledged that the proceedings were initially proceedings under the GIPA Act and stated that parties should not be deterred from acting to access government information because of concerns about an award of costs. However, every costs application must be considered on its own. Even taking into account the objects of the GIPA Act and s 3(c) of the NCAT Act, the Appeal Panel determined that the factors amounted to special circumstances (at [41]-[42], [44]).
(iii) The Appeal Panel awarded fixed costs on the basis that the costs claimed by the respondent were modest and any formal costs assessment would only add to the costs burden on the respondent. Further, the Appeal Panel was able to determine an appropriate sum of the costs with all the invoices of the respondent’s legal representative before it and was satisfied the costs incurred were reasonable. In line with Huang v Drumm [2017] NSWSC 1006 and Starr-Diamond v Diamond (No 4) [2013] NSWSC 811, the Appeal Panel deducted an amount of 20% from the costs of the respondent and awarded a lump sum of $7309.76 to the respondent ([49]-[52]). | 2. A strict approach to exercising the discretion to grant an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) | Durastyle Homes Pty Limited v Gosling [2023] NSWCATAP 111 Consumer and Commercial Division – Home Building A Suthers, Principal Member; A Boxall, Senior Member
In sum: An Appeal Panel relied on the default position regarding extensions of time under s 41 of the NCAT Act as set out in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [72]-[74], which established that time limits should be strictly enforced unless the interests of justice require an extension of time to be granted. On balance, the Appeal Panel was not satisfied that the circumstances demanded such a departure.
Facts: The two underlying Tribunal proceedings concerned building works performed by the appellant (builder) on the respondents’ (owners) residence. On 28 June 2022, the Tribunal dismissed the builder’s claim and ordered it pay the owners’ costs, and upheld the owners’ claim, ordered the builder to pay them $13,994.97 and to pay the owners’ costs. The Tribunal granted leave for the parties to seek a different costs order and on 21 September 2022, the Tribunal dismissed the builder’s costs application and affirmed its 28 June 2022 orders. On 21 October 2022, the appellant filed a Notice of Appeal against that decision. It was accepted by the builder that the Notice of Appeal was 2 days late under cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW). The Appeal Panel was required to consider whether to exercise its discretion under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to extend time to lodge the Notice of Appeal.
Held (refusing leave to extend time to lodge the Notice of Appeal): (i) The Appeal Panel acknowledged the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] but also referred to Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [72]-[74] as setting out wider considerations underlying s 41 of the NCAT Act which tied back to the guiding principle set out in s 36 of the NCAT Act. The Appeal Panel held that Habib establishes both the default position in relation to extensions of time – that they should be strictly enforced – and the moral and legal justification allowing departure from that default position – where the interests of justice require an extension of time be granted. Further, Habib contextualises the formulation in Jackson and provides guidance for determining when the interests of justice demand departure from strict compliance with time limits. The Appeal Panel noted that appeals from costs decisions attract other considerations, with the courts (in NSW and other jurisdictions) having made clear that appeals relating to costs orders alone should not be entertained lightly (at [26], [29], [30], [31]).
(ii) The Appeal Panel accepted that the length of the delay was modest and the result of an error by the builder’s solicitors, rather than its own error. However, the parties had been engaged in proceedings concerning the same work since November 2020 and the builder had, until mid-October 2022, negotiated with apparent timeliness and efficiency, the rules and procedures of NCAT. The builder was not self-represented but a commercial litigant which had entrusted the conduct of the proceedings to its lawyers. Neither the brevity of the delay nor the suggestion that the delay was a result of the builder’s solicitors’ error offered a sufficiently compelling reason to depart from the principles in Habib. The appellant remained entitled to its legal rights against its solicitors in relation to the delay. Further, the appellant’s prospects of success on appeal were not high and there was no issue of general principle or public importance. There was nothing to indicate prejudice to the respondent in relation to an extension of time. On balance, the Appeal Panel held it was not appropriate to exercise its discretion under s 41 of the NCAT Act as the interests of justice did not demand a departure from the basic principle in Habib that time limits should be strictly enforced (at [36], [37], [38], [44], [45], [46]). | 3. Are NCAT proceedings under the Residential Tenancies Act 2010 (NSW) (RTA), by nature, adversarial or inquisitorial? | McKerlie v Leeser [2023] NSWCATAP 112 Consumer and Commercial Division – Residential Tenancy K Ransome, Senior Member; G Ellis SC, Senior Member
In sum: The default position is that proceedings in NCAT’s Consumer and Commercial Division are adversarial in nature, although an inquisitorial (but not purely inquisitorial) approach may be adopted.
Facts: The four underlying proceedings concerned a residential tenancy between the parties. The orders at first instance included a termination order and a money order for the tenant to pay the landlord rental arrears (less an amount for compensation). The appellant appealed with forty amended grounds of appeal and his primary contention was that proceedings in NCAT under the RTA are inquisitorial in nature but are dealt with as adversarial in nature. The appellant sought referral of a question of law to the Supreme Court under s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), being “whether the conduct of proceedings under the [RTA] are, by nature, adversarial or inquisitorial”? Note: s 54 of the NCAT Act requires the President’s consent to refer a question of law to the Supreme Court.
Held (refusing leave to appeal): (i) The rise of case management has meant that courts no longer operate in a purely adversarial manner, and the distinction between inquisitorial and adversarial proceedings is often not all one way or another. The guiding principle set out in s 36(1) of the NCAT Act, alongside provisions in the NCAT Act including ss 36(4), 37 and 38 suggest that NCAT may adopt an inquisitorial approach. In particular, s 38(2) of the NCAT Act contains the words “may inquire”. The Appeal Panel acknowledged that the Court of Appeal decision in Italiano v Carbone & Ors [2005] NSWCA 177 found that the former Consumer, Trader and Tenancy Tribunal (a predecessor to NCAT) considered the proceedings before it to be closer to a judicial model than an inquisitorial model. The Appeal Panel determined that consideration of the statutory provisions in the NCAT Act favoured a view that the default position in NCAT is that proceedings in the Consumer and Commercial Division are adversarial, but an inquisitorial approach may be adopted. There is no apparent justification in either the RTA or the NCAT Act for a purely inquisitorial approach. Even if a contrary view was taken, the Appeal Panel found that the appellant had not indicated how that view would alter the first instance decision (at [69], [70]-[71], [75]-[78], [80], [81]-[83]).
(ii) The Appeal Panel was satisfied that the answer to the question the appellant sought to refer to the Supreme Court was sufficiently clear, which weighed against referral. The issues raised in the appeal should be resolved justly, quickly and cheaply by the appeal, and there remained the option for the appellant to appeal to the Supreme Court (at [58]). | | | | Jethsons Pty Ltd v Ly [2023] NSWCATAP 97 Consumer and Commercial Division – Home Building Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – procedural fairness – question of law - money order in home building case made in absence of builder and any evidentiary material and submissions from the builder – on appeal builder said he preferred a work order for less work than the work the subject of the money order – builder aware of proceedings and hearing date – no reasonable explanation for failure to attend hearing – no procedural unfairness established – no grounds for leave to appeal | | Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 Consumer and Commercial Division – Social Housing Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – appeal from consent orders made by the Consumer and Commercial Division – whether there are any other grounds on which consent orders should be set aside – whether consent orders vitiated by duress, mistake or undue influence | Moffatt v Muscat [2023] NSWCATAP 100 Consumer and Commercial Division – Residential Tenancy Decision of: G Blake AM SC, Senior Member; R Titterton OAM, Senior Member Catchwords: APPEALS – Appeal on question of law – Principles governing – Questions of law in notice of appeal raising jurisdictional error, procedural fairness and no evidence to support decision – No errors of law – APPEALS – Leave to appeal – Principles governing – Leave to appeal granted – APPEALS – New hearing – Principles governing – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rent and outgoings – Failure to pay – Whether rental subsidy received by the landlords subject to Quistclose trust – Principles to determine the existence of Quistclose trust – No Quistclose trust | TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd (No 2) [2023] NSWCATAP 101 Consumer and Commercial Division – Commercial Decision of: A Suthers, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – costs – both parties having success on appeal – one party succeeding on a ground not raised at first instance – 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 tenant” 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) | |
Bailey v Commissioner of Police, NSW Police Force [2023] NSWCATAP 103 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – failure to make findings as to whether there were any public interest considerations in favour of disclosure and the weight to be given to them – whether reasons were inadequate | | Szeto v The Owners - Strata Plan No 1418 [2023] NSWCATAP 105 Consumer and Commercial Division – Strata Schemes Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: LAND LAW – Strata title – Owners corporation – Liability of owners corporation – Whether loss of rent of the owners was caused by the failure of the owners corporation to repair the common property | Dux v Medina [2023] NSWCATAP 106 Consumer and Commercial Division – Residential Tenancy Decision of: G Curtin SC, Senior Member; L Wilson, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – exercising jurisdiction – requirement to determine a live issue before the Tribunal | Cuthbert v The Owners - Strata Plan No. 34194 [2023] NSWCATAP 107 Consumer and Commercial Division – Home Building Decision of: I R Coleman SC ADCJ, Principal Member; L Wilson, Senior Member Catchwords: APPEALS – whether leave to appeal should be granted – whether leave to adduce further evidence should be granted – whether appeal should be dismissed | Mulvenna v Tuan Golden Pty Ltd [2023] NSWCATAP 108 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; L Wilson, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – application for leave to appeal on the basis of new evidence not reasonably available prior to the hearing at first instance – application refused – no question of principle | Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 Consumer and Commercial Division – Social Housing Decision of: G Sarginson, Senior Member; E Bishop SC, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Social housing tenancy – No grounds notice to terminate – s 85 Residential Tenancies Act 2010 (NSW) – Retaliatory notice – s 115 of the Residential Tenancies Act 2010 (NSW) – Whether notice retaliatory – Whether tenancy should be terminated – No error of law established – No error requiring leave to appeal being granted established | Zioukin v BE Commerce Pty Ltd [2023] NSWCATAP 110 Consumer and Commercial Division – General Decision of: A Balla ADCJ, Principal Member; A Suthers, Principal Member Catchwords: APPEAL – unrepresented appellant – application for vacation of hearing made on day – no sufficient basis shown – no basis to adjourn – appeal from decision in Consumer and Commercial Division – no relevant question of law | | McKerlie v Leeser [2023] NSWCATAP 112 Consumer and Commercial Division Decision of: K Ransome, Senior Member; G Ellis SC, Senior Member Catchwords: APPEAL – No error on a question of law – claims that decision was not fair and equitable and that decision was against the weight of the evidence not established – no basis for granting leave – CIVIL PROCEDURE – Whether Tribunal proceedings are adversarial or inquisitorial – PRACTICE AND PROCEDURE – referral of question of law to the Supreme Court – no adequate reason provided | Westweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Consumer and Commercial Division – Strata Scheme Decision of: K Rosser, Principal Member; R C Titterton OAM, Senior Member Catchwords: APPEALS – substantive decision – whether an extension of time should be granted – application for leave to appeal – no question of principle – APPEALS – costs decision – application for leave to appeal – no question of principle | Kaye v Mission Australia Housing Limited [2023] NSWCATAP 114 Consumer and Commercial Division – Residential Tenancy Decision of: K Ransome, Senior Member; G Sarginson, Senior Member Catchwords: APPEAL – Leases and tenancies – Residential Tenancies Act 2010 – Social housing – Loss of quiet enjoyment – Claim for compensation by tenant – Limitation period – Refusal to extend limitation period – Whether error of law established – Whether leave to appeal should be granted | Turner v Baker [2023] NSWCATAP 115 Consumer and Commercial Division – Residential Tenancy Decision of: G Ellis SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – No error on a question of law – no basis for leave to appeal – extension of time refused | | 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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