NCAT Appeal Panel Decisions Digest Issue 5 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 May 2023:
Cumbamani v Commissioner of Victims Rights [2023] NSWCATAP 118: In light of the beneficial nature of the Victim Rights and Support Act 2013 (NSW) (VRSA), there is no warrant for an approach to compensation that is “once and for all”. Further claims for victim’s support under the VRSA are not limited to those nominated or foreshadowed in the initial application. They are permitted to be made until the five-year period expires or the maximum amount of financial support has been received, whichever is first.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Are further claims for victim’s support under the Victims Rights and Support Act 2013 (NSW) (VRSA) limited to those nominated or foreshadowed in the initial application? |
Cumbamani v Commissioner of Victims Rights [2023] NSWCATAP 118 Administrative and Equal Opportunity Division Dr R Dubler SC, Senior Member; D Robertson, Senior Member
In sum: An Appeal Panel held that the scheme under the VRSA does not limit further claims for victim’s support to those nominated or foreshadowed in the initial application. The VRSA contemplates and permits multiple claims to be made under an existing application until the first of a period of five years after the application is made or the maximum amount of financial support has been received. The VRSA is beneficial legislation and should not be restricted to a “once and for all” approach to compensation.
Facts: A victim alleged acts of violence perpetrated by the appellant and on 4 January 2018, signed an application for victim’s support under the VRSA. On 11 April 2018 and 14 August 2018, assessors approved sums for immediate needs, economic loss and a recognition payment. On 3 February 2020, the respondent, under s 64 of the VRSA, ordered the appellant to pay restitution. The appellant applied to the Tribunal for administrative review and on 8 December 2022, the Tribunal confirmed the respondent’s decision. The appellant appealed the Tribunal’s confirmation.
Held (allowing the appeal): (i) The appellant sought to argue, in reliance the words “duly made” in s 40(1) and (6) of the VRSA, that the total maximum amount that the victim was “eligible to receive” under her “duly made application” had been paid more than two years before the respondent made the order under s 64, and so the order was out of time. He argued that the victim was not eligible to make further claims after 14 August 2018 because additional claims made under an initial application are limited to expenses nominated or foreshadowed in the original “duly made” application, and so the limitation period in s 59(2)(a) must apply. The Appeal Panel held that the restrictive interpretation argued by the appellant should not be applied to the VRSA, which is beneficial legislation intended to support victims of crime. The scheme under the VRSA does not take a “once and for all” approach to a victim’s claim for compensation. Indeed, the ability to make further claims under an existing application is an important part of the beneficial role of the VRSA. There was no warrant for limiting further claims to those nominated or foreshadowed in the initial application (at [24]-[31], [36], [37], [38], [41]).
(ii) The Appeal Panel held that the Tribunal miscarried its exercise of discretion to determine whether to reduce the restitution order. It found that the Tribunal applied a wrong legal principle in following Connor v R [2005] NSWCCA 431. The provisions considered in Connor are different to those in the VRSA; s 69(1)(a) makes “the financial means of the defendant” a mandatory relevant consideration. It was not appropriate for the Tribunal to have had regard to and adopted the passage from Connor, and the Tribunal’s error of legal principle was an appropriate basis for the Appeal Panel to overturn the discretionary decision. The Appeal Panel found that it was appropriate to remit the matter to a differently constituted Tribunal for reconsideration of whether the amount of the restitution order should be reduced (at [45]-[46], [51], [52], [55]-[58]). |
2. Can an NCAT Appeal Panel stay a transfer to a Court once it has been made, and if so, does that power have any temporal limitation? |
Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 [2023] NSWCATAP 122 Consumer and Commercial Division – Home Building A Suthers, Principal Member
In sum: It would be an “exercise in futility” to grant a stay against an order to transfer proceedings to a Court, as irrespective of the administrative act of transferring the NCAT file to a Court, the transfer arising from the order had already taken place in the past. Where the order does not specify a date on which it takes effect, the order prima facie takes effect when it is made. As a result, an Appeal Panel found it did not have any meaningful power to grant a stay and dismissed the application.
Facts: The respondent (owner) contracted with the appellant (builder) for works that led to a building dispute. The owner commenced proceedings in NCAT but applied for the proceedings to be transferred to the District Court on the basis that the claim was quantified in an amount over NCAT’s jurisdictional limit under s 48K(1) of the Home Building Act 1989 (NSW). The Tribunal made orders to that effect and transferred its file to the Court. The builder appealed the decision to transfer and sought a stay of the transfer.
Held (refusing to grant the stay): (i) The Appeal Panel had regard to Campbell JA’s decision in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [110], which referred to the granting of a stay as “total exercises in futility, because a “stay”, in the literal sense, of a such a decision would be legally of no effect.” In response, the builder sought to argue that a stay could be ordered with the effect that the District Court would be rendered legally unable to proceed with determination of the proceedings. The Appeal Panel held that on the proper construction of s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the decision to transfer the proceedings came into effect when it was made, and with regard to cl 6(1) of Sch 4 to the NCAT Act, there is no requirement for a court to “accept” the transfer for it to be effective. As a result, the Appeal Panel found that the order to transfer the proceedings to the District Court was effective when it was made and then spent, even prior to the administrative act of the transfer of NCAT’s physical file. The Appeal Panel had no meaningful power to stay the transfer and so dismissed the builder’s application. The Appeal Panel noted that nothing prevented the parties from seeking a delay from the District Court until the appeal was resolved (at [10], [16], [20], [23], [25]-[26], [6]).
(ii) Had it been satisfied it could meaningfully make the order granting a stay, the Appeal Panel noted it would have exercised its discretion under s 43(3) of the NCAT Act to do so. The appeal was arguable, despite significant obstacles to its success. If the stay was not granted, the builder’s objective in bringing the appeal would be stifled, because the proceedings would proceed in a forum where strict pleadings would be required and the rules of evidence would apply, likely increasing the parties’ costs. The appeal itself was listed for hearing within the month and so any delay would be relatively minor compared to the history of the dispute. Weighing those considerations, the Appeal Panel would have granted the stay if it thought there was any meaningful basis for doing so (at [27]-[32]). |
3. Does s 109(6)(b) of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) require or permit the averaging of site fees? |
Hometown Australia Lennox Australia Pty Ltd v Schoenheimer [2023] NSWCATAP 128 Consumer and Commercial Division – Residential Community D Charles, Senior Member; D Ziegler, Senior Member
In sum: Section 109(6)(b) of the RLLC Act does not permit the averaging of site fees to determine fair market value. Instead, the proper construction of ss 109(5) and 109(6)(b) is that site fees will exceed “fair market value” if the new site fees exceed the site fees currently payable for all sites of similar size and location in the residential community.
Facts: The appellant (operator) operates a residential community with around 83 sites. On 27 September 2021, the respondent (homeowner) became a member of the residential community, with site fees payable under the site agreement between the operator and the respondent totalling $192/week. The site fees payable by the outgoing homeowner were $166.05/week. Because of the increase in site fees, the homeowner applied to the Tribunal for orders that the site fees under the new site agreement exceeded fair market value within the meaning of s 109(6)(b) of the RLLC Act. The Tribunal Member averaged the site fees payable of three sites of similar size and location to determine the “fair market value” at the time the disclosure agreement was given to the homeowner and found that the fees under the new site agreement exceeded fair market value. The operator appealed on a question of law in relation to the proper construction of s 109(6)(b) of the RLLC Act.
Held (allowing the appeal): (i) The operator argued that the Tribunal’s construction of s 109(6)(b) as meaning “the average of the site fees currently payable” was wrong in principle and did not accord with the text of the RLLC Act; the proper construction of ss 109(5) and 109(6) is that site fees will not exceed fair market value if they do not exceed site fees currently payable at one or more residential sites in the residential community of a similar size and location. The Appeal Panel agreed. The respondent’s reliance on two authorities to support the notion that averaging “is not new to the Tribunal” was irrelevant, as those authorities did not concern the relevant provision. The notion of an average is not supported by the statutory text, which refers to fees “currently payable”. Any average found by the Tribunal would be unlikely to correspond with any site fees currently paid by any other resident and here, the average was not an actual site fee payable for any of the identified similar sites. The words “currently payable” must be given meaning. As a result, the upper limit provided for in ss 109(5) and 109(6)(b) will be the highest of the site fees payable for sites of a similar size and location in the residential community. Further, the Appeal Panel found that the phrase “currently payable” is to be properly construed as at the time of entry into the new site agreement, and not at the time of provision of the disclosure agreement (at [37]-[43], [47], [49], [63]).
(ii) In support of its construction of s 109(6)(b), the Appeal Panel looked to the objects of the RLLC Act, which seek to strike a balance between the rights of homeowners and operators. In Pt 10 of the RLLC Act, this balance is primarily of the rights of the selling homeowner and the rights of the operator, including as to the growth and viability of the residential community. Reading s 109 in context with Pt 10 and looking at the primary purpose of s 109, the aim of the section is to ensure that an operator cannot unreasonably interfere in the ability of the selling homeowner to sell their home. The new homeowner is otherwise protected by the general provisions of the RLLC Act. The Appeal Panel acknowledged the challenges of applying a purposive approach in circumstances where a balancing exercise of interacting purposes was undertaken in the drafting of the legislative provision. Primacy should be given to the statutory text and here there was no warrant for reading in words to the section to allow for averaging. It is not the Tribunal’s role to rewrite the statute. The Tribunal at first instance had not given effect to the statutory demand as set out in the subsection (at [23]-[24], [44]-[46], [52]-[55]). |
4. How should the Tribunal treat admissions of fact in a points of defence signed by a solicitor? |
Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Consumer and Commercial Division – Commercial G Blake AM SC, Senior Member; M Gracie, Senior Member
In sum: An admission in a points of defence that has been signed by the party’s solicitor and filed in the Tribunal should be treated in the same manner as an agreed fact within s 191 of the Evidence Act 1995 (NSW) (EA): an admission of fact will not be required to be proven by evidence. As a result, any absence of evidence in support of that fact will be irrelevant.
Facts: The respondent (lessor) and the appellant (lessee) entered into a lease of a retail shop premises on 12 August 2020. During the period 10 June 2021 to 11 October 2021, there was a prohibition on the premises being open to the public (except in limited circumstances) as a result of COVID-19 public health orders. On 24 November 2021, the lessor served a notice of termination on the lessee, citing several breaches including a failure to pay the correct rent. On 13 December 2021, the lessor re-entered the premises and changed the locks. Both the lessor and the lessee commenced proceedings against the other seeking relief under the Retail Leases Act 1994 (NSW). In his points of claim, the lessee had pleaded that he was an impacted lessee within the meaning of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW) (COVID-19 Regulation). The lessor had “generally admit[ted]” that paragraph in its points of defence. In written closing submissions, the lessor submitted that it had not been proven on the evidence that the lessee was an impacted lessee. The Tribunal dismissed the lessee’s proceeding, in the lessor’s proceeding ordered that the lessee pay to the lessor $60,025.34, and in both proceedings the lessee was to pay the lessor’s costs. The lessee appealed from both proceedings.
Held (allowing the appeal in part): (i) The Appeal Panel reviewed and summarised the authorities on appeals on a question of law and considered the scope of a question of law, particularly under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Whilst the grounds of appeal themselves did not identify questions of law, the Appeal Panel found that two questions of law had been raised and the lessee had an appeal as of right in respect of those grounds. First, whether the Tribunal had constructively failed to exercise jurisdiction by not addressing a material issue – the admission in the lessor’s points of defence that the lessee was an impacted lessee. Second, whether s 133A(1) of the Conveyancing Act 1919 (NSW) on its proper construction applied to cll 7.2, 7.3.3, 12.3.1 and 18.7.1.4 of the lease. The second question was accepted to be a question of mixed fact and law, but as it necessarily required determination of the proper construction of the subsection, there was a question of law within the principles of Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66]. The Appeal Panel noted that it would have granted leave to appeal as it was satisfied the lessee may have suffered a substantial miscarriage of justice on the basis that the decision at first instance was not fair and equitable within cl 12(1)(a) of Sch 4 to the NCAT Act. The Appeal Panel granted leave to appeal the Tribunal’s costs orders as it was satisfied the lessee may have suffered a substantial miscarriage of justice on the basis that the decision was not fair and equitable where the Tribunal had proceeded on the mistaken basis that the lessor was successful (at [69]-[85], [90]-[95], [97]-[98]).
(ii) The lessor argued that the points of claim could not give rise to an admission because it had failed to articulate with precision under which regulation he claimed to be an impacted lessee and at what relevant time, and that evidence had been filed before the points of claim and defence so there was no sufficient explanation for the lessee’s failure to adduce evidence on the issue. The Appeal Panel held that an admission in a points of defence filed in NCAT proceedings cannot be equated with an admission in a defence filed in Supreme Court or District Court proceedings – there are no equivalent NCAT provisions to rr 12.6(2) and 14.23 of the Uniform Civil Procedure Rules 2005 (NSW). Noting that it was not bound by the rules of evidence, the Appeal Panel considered that the Tribunal should consider an admission in a defence signed by a solicitor and filed in the Tribunal in the same manner as an agreed fact within s 191 of the EA: an admission of fact will not be required to be proven by evidence. Such an approach was found to be permitted by ss 38(1) and 36(1) and (2)(a) of the NCAT Act. The Appeal Panel found no reason why the agreed fact should not be accepted by it as true – it was not inherently incredible and there was no contradictory evidence. Given the Appeal Panel’s acceptance of the agreed fact, the absence of evidence from the lessee as to whether he was an impacted lessee was irrelevant (at [109], [111]-[118]).
(iii) The Appeal Panel was satisfied that the lessor’s re-entry to the premises on 13 December 2021 was prohibited by cl 6C of the COVID-19 Regulation. The lessor had conceded that if re-entry was prohibited then it had repudiated the lease and that repudiation had been accepted by the lessee. As a result of the Tribunal’s material error in this regard, the Appeal Panel determined the appeal by way of a new hearing pursuant to s 80(3)(a) of the NCAT Act, confined to the determination of whether the lessor suffered loss as a result of the repudiation of the lease. The Appeal Panel did not consider any of the amounts claimed by the lessee to be heads of damage arising from repudiation of the lease. However, the Appeal Panel awarded nominal damages of $100, on the basis that a breach of contract will give rise to a cause of action even where it is not shown to have caused loss or damage (at [131], [132]-[135], [152]-[153]). |
|
|
|
Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 117 Administrative and Equal Opportunity Division Decision of: A Suthers, Principal Member Catchwords: COSTS – costs of multiple applications which were an abuse of process – failure of costs respondent to engage with costs application but instead to continue to agitate matters already determined – costs in fixed sum |
Cumbamani v Commissioner of Victims Rights [2023] NSWCATAP 118 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW – Victims Rights and Support – whether order for restitution under s 67(2A) of the Victims Rights and Support Act 2013 (NSW) was made within time – whether or not the discretion to reduce the restitution order under s 69 of the Victims Rights and Support Act 2013 (NSW) miscarried – whether or not the statement of principle in Connor v R [2005] NSWCCA 431 at [41(iii)] governs the exercise of the discretion to reduce a restitution order under s 69 of the Victims Rights and Support Act 2013 (NSW) |
Roberts v The Owners – Strata Plan No 4393 [2023] NSWCATAP 119 Consumer and Commercial Division – Strata Schemes Decision of: G Curtin SC, Senior Member; E Bishop SC, Senior Member Catchwords: COSTS – application of s 60 of the Civil and Administrative Tribunal Act 2013 – appeal therefrom – general considerations relating to appeals from final decisions as to costs – no question of principle |
Jeray v Blue Mountains City Council [2023] NSWCATAP 120 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dubler SC, Senior Member Catchwords: CIVIL PROCEDURE – summons to give evidence and produce documents – whether Information Commissioner compellable to give evidence |
Carolan v Haghparast [2023] NSWCATAP 121 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; R C Titterton OAM, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – questions of law – other errors – construction of contractual terms |
|
Niu v Chief Commissioner of State Revenue [2023] NSWCATAP 123 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; E Bishop SC, Senior Member Catchwords: REVENUE LAW – state taxes – proper construction of sections 104ZF and 104ZKA of the Duties Act 1997 (NSW) – whether the Appellant is liable for surcharge purchaser duty in respect of the purchase of land in New South Wales |
Sesay v Duran [2023] NSWCATAP 124 Consumer and Commercial Division – Residential Tenancy Decision of: K Ransome, Senior Member Catchwords: APPEAL – appeal dismissed for non-appearance – application to set aside dismissal – previous application for reinstatement refused – relevant principles |
Burns v St George Community Housing Ltd [2023] NSWCATAP 125 Consumer and Commercial Division – Residential Tenancy Decision of: L. Wilson, Senior Member Catchwords: APPEAL – reinstatement after dismissal for non-appearance – multiple reinstatement applications – utility of reinstating proceedings |
Vlaanderen v Schuessler [2023] NSWCATAP 126 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – HOME BUILDING – dismissal of compensation claim – no error of law – no issue of principle |
357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127 Consumer and Commercial Division – Commercial Decision of: P Durack SC, Senior Member; E Bishop SC, Senior Member Catchwords: APPEALS – retail lease of pharmacy – whether lessor engaged in unconscionable conduct in contravention of s 62B of the Retail Leases Act 1994 (NSW) – dealings between lessor and lessee about rent during the COVID-19 pandemic – lessee in arrears of rent before the pandemic – lessor withdrew rent rebate applied before the pandemic – legislative measures introduced during the pandemic concerning an ‘impacted lessee” – no COVID rent relief agreed upon – lessee did not provide lessor with documents showing any decline in sales as a result of the pandemic – Tribunal did not examine all circumstances pertaining to alleged unconscionable conduct – whether questions of law raised on appeal – findings of fact without probative evidence – leave to appeal sought in the alternative if questions of law not raised – remitter of some claims to differently constituted Tribunal |
Hometown Australia Lennox Australia Pty Ltd v Schoenheimer [2023] NSWCATAP 128 Consumer and Commercial Division – Residential Community Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: RESIDENTIAL COMMUNITIES – site fees of similar size and location – fair market value of site fees in a new site agreement – statutory interpretation – s 109(6)(b) does not require or permit an averaging of site fees |
Brucic Pty Ltd v Turton [2023] NSWCATAP 129 Consumer and Commercial Division – Home Building Decision of: P. Durack SC, Senior Member; D. Goldstein, Senior Member Catchwords: BUILDING AND CONSTRUCTION – breach of statutory warranty of due care and skill under the Home Building Act 1989 (NSW) – whether work done was residential building work – whether work was done on a “driveway”, which is included within the definition of a “dwelling” – work done on part of road used to access dwelling on a small rural property – whether question of law involved-conclusion that work was done on a “driveway” was open to the Tribunal |
Madic Construction Pty Ltd v Noble [2023] NSWCATAP 130 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – HOME BUILDING – Renewal proceedings – orders made must be other than original orders – against the weight of evidence |
McCartney v Wood [2023] NSWCATAP 131 Consumer and Commercial Division – Residential Tenancy Decision of: G Blake AM SC, Senior Member; J S Currie, Senior Member Catchwords: APPEALS – Point not taken below – Conduct of trial – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Repairs – Landlord’s duty – whether the duty extends to part of the premises which is common property – whether the tenants are entitled to compensation for damage to the motor vehicle in the garage of the premises and if so what compensation |
Macatangay v Secretary, Department of Education [2023] NSWCATAP 132 Administrative and Equal Opportunity Division Decision of: T Simon, Principal Member; A Suthers, Principal Member Catchwords: APPEAL – Procedure – Vexatious litigant – Purported appeal to the Appeal Panel of the New South Wales Civil and Administrative Tribunal dismissing appeal from a professional decision of the Administrative and Equal Opportunity Division – Whether order of the Court of Appeal under the Vexatious Proceedings Act 2008 (NSW) prohibiting appellant instituting proceedings – APPEALS – question of law – administrative review – denial of procedural fairness – whether the decision was an administratively reviewable decision – whether the Tribunal had jurisdiction to determine an application – conduct under the Privacy and Personal Information Protection Act 1988 (NSW) – CIVIL PROCEDURE – Vexatious litigant – Institution of proceedings without leave – Proceedings stayed from institution and taken to be dismissed after 28 days if not ordered to be dismissed earlier by operation of s 13 of the Vexatious Proceedings Act 2008 (NSW) |
Webb v Port Stephens Council [2023] NSWCATAP 133 Administrative and Equal Opportunity Division Decision of: Dr R Dubler SC, Senior Member; E Bishop SC, Senior Member Catchwords: ADMINISTRATIVE LAW – access to government information – whether disclosure would undermine competitive neutrality of an agency or place it at a disadvantage in any market – whether disclosure would diminish competitive commercial value of information – whether disclosure would prejudice a person’s legitimate business, commercial, professional or financial interests |
Oakland Ops PL v Morrison [2023] NSWCATAP 134 Consumer and Commercial Division – Residential Community Decision of: A Suthers, Principal Member; G K Burton SC, Senior Member Catchwords: APPEAL – Residential (Land Lease) Communities – methodology of setting site fees under new site agreement – Residential (Land Lease) Communities Act 2013 (NSW) s 109(5), (6) – remitter to differently-constituted Tribunal |
Wang v Dimitropoulos [2023] NSWCATAP 135 Consumer and Commercial Division – Commercial Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: APPEALS – jurisdiction of Tribunal – renewal proceedings – no jurisdiction to renew proceedings where no time for compliance specified – slip rule – s 63 Civil and Administrative Tribunal Act – procedural fairness – ENVIRONMENT AND PLANNING – fences and boundaries – dividing fence – s 15 Dividing Fences Act 1991 – recovery of cost of fencing work |
Layoun v Multiproperties Pty Ltd [2023] NSWCATAP 136 Consumer and Commercial Division – Commercial Decision of: S Thode, 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 landlord had entered into negotiations “in good faith” |
YBT v NSW Trustee and Guardian [2023] NSWCATAP 137 Guardianship Division Decision of: IR Coleman SC ADCJ, Principal Member; C Fougere, Principal Member; F Given, General Member Catchwords: APPEAL – NCAT – appeal from Guardianship Division – dismissal of request to revoke financial management order – no question of law – leave to appeal – findings not unreasonably arrived at nor clearly mistaken – leave refused |
Hodges v Commissioner of Fair Trading [2023] NSWCATAP 138 Administrative and Equal Opportunity Division Decision of: A Balla ADCJ, Principal Member; Dr Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – motor dealers licence – refusal to grant licence APPEALS – whether time to lodge appeal should be extended – whether new evidence should be allowed – whether Tribunal failed to give applicant opportunity to be heard – whether the Tribunal was biased |
|
FLK v Transport for NSW [2023] NSWCATAP 140 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; D Robertson, Senior Member Catchwords: ADMINISTRATIVE LAW – Marine Safety Act 1998 (NSW) – Procedural fairness – Where appellant asserted that Tribunal failed to take into account his statement of evidence in respect of which he had not been cross-examined – Whether Tribunal did fail to take evidence into account – Whether denial of procedural fairness or failure to exercise jurisdiction |
Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Consumer and Commercial Division – Commercial Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: APPEALS – Appeal on question of law – Scope of question of law – APPEALS – Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence – APPEALS – Leave to appeal – Principles governing – leave to appeal granted – APPEALS – New hearing under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) CIVIL PROCEDURE – Effect of admission in points of defence – LEASES AND TENANCIES – Retail leases – Retail shop lease – Whether lessee an impacted lessee under COVID-19 regulatory regime – LEASES AND TENANCIES – Retail leases – Repudiation of the lease by the lessor – Damages recoverable by the lessee – Damages recoverable by the lessor – LEASES AND TENANCIES – Retail leases – Covenant to repair – Application of s 133A of the Conveyancing Act 1919 (NSW) – Proof of the diminution to the value of the reversionary interest in the premises where the repairs not carried out |
Quo Warranto Pty Ltd v Goodman (No 2) [2023] NSWCATAP 142 Consumer and Commercial Division – Strata Schemes Decision of: K Rosser, Principal Member; C Fougere, Principal Member Catchwords: COSTS – Appeal – Whether rule 38 or s 60 applies in Tribunal and appeal proceedings – special circumstances – exercise of discretion |
Trajkovski v Harrison [2023] NSWCATAP 143 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member; D Goldstein, Senior Member Catchwords: LAND LAW – Strata Schemes – apprehended bias – Hearing rule – Alleged excessive interference in the proceedings – Section 237(5) of the Strata Schemes Management Act 2015 (NSW) |
The Owners - Strata Plan No. 74442 v Harrison [2023] NSWCATAP 144 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member; D Goldstein, Senior Member Catchwords: LAND LAW – Strata Schemes – Apprehended bias – Hearing rule – Alleged excessive interference in the proceedings – Section 237(5) of the Strata Schemes Management Act 2015 |
Moore v Gallaria Pty Ltd [2023] NSWCATAP 145 Consumer and Commercial Division – Home Building Decision of: S Thode, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – Decision not fair and equitable – Decision against the weight of evidence – Procedural fairness |
Tourism Integration Ltd t/as Jettzy v Hui [2023] NSWCATAP 146 Consumer and Commercial Division – General Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – appeal on question of law – question of law raised – no error established – other errors – no other errors established – no question of principle |
Ross v The Owners – Strata Plan No 61667 [2023] NSWCATAP 147 Consumer and Commercial Division – Strata Schemes Decision of: A Suthers, Principal Member Catchwords: APPEAL – reinstatement after dismissal for non-appearance – principles to be applied where extension of time required – COSTS – costs of appeal where dismissed but application not supported by submissions and of application to reinstate appeal |
Timilty Constructions Pty Ltd v Culina (No 2) [2023] NSWCATAP 148 Consumer and Commercial Division – Home Building Decision of: G Sarginson, Senior Member; M Gracie, Senior Member Catchwords: COSTS – APPEAL – NCAT – whether amount in dispute on appeal was more than $30,000 – usual order under r 38 – whether disentitling conduct – apportionment of issues – appeal allowed in part – mixed success on appeal – exercise of discretion that each party pay their own costs |
|
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. |
