NCAT Appeal Panel Decisions Digest Issue 6 of 2022 |
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 June 2022:
Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212: The appellant homeowners were entitled to a claim in restitution based on the total failure of consideration, where a contract was partly performed but the work commenced was trivial and severable. Royal Flair Caravans Pty Ltd v Kylie Ryan Productions Pty Ltd [2022] NSWCATAP 215: A challenge to the Tribunal’s power to make an indemnification order against a manufacturer under s 274 Australian Consumer Law 2010 (ACL) failed. Tribunals and Courts have concurrent jurisdiction with respect to consumer claims commenced under Parts 2 and 3 ACL.
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Where a contract was partly performed, could the appellants make a claim for restitution, or did they have to prove loss resulting from a breach of contract? |
Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Consumer and Commercial Division G Curtin, Senior Member; D Goldstein, Senior Member
In sum: The Tribunal erred by fundamentally misunderstanding the appellants’ case and constructively failing to exercise jurisdiction. The appellant homeowners were entitled to a claim in restitution based on the total failure of consideration, where the contract was partly performed but the work commenced was trivial and severable. The Tribunal also failed to consider the mandatory consideration of whether a “work order” should be made under s 48MA of the Home Building Act 1989 (NSW) to complete the contract.
Facts: The applicants (homeowners) engaged the respondents (builders) in a part oral, part written contract for renovations, paying a $4,500 deposit. Following the commencement of performance of the contract, by way of demolitions within the home, it became apparent when the instalments were to commence that the builders purchased the incorrect structural beams. Whilst the builders made assurances that the pine beams would be structurally sufficient, this contradicted subsequent evidence from an engineering report sought by the homeowners. The homeowners withdrew from the agreement and requested a refund of the deposit paid, which the builders refused. Following a complaint to NSW Fair Trading which resulted in unfavourable outcomes for the homeowners, they commenced proceedings in the Tribunal to recover the cost of the deposit, where the builders were unable to fulfil the contract. The builders provided evidence of part performance, and the costs outlaid for that performance which exceeded the deposit. The Tribunal dismissed the homeowner’s claim, stating they had failed to meet their burden of proof by not establishing the loss resulting from the breach of contract.
Held (allowing the appeal):
(i) The Tribunal erred when it fundamentally misunderstood the claim brought by the homeowners thereby constructively failing to exercise its jurisdiction and giving rise to a right to appeal. The homeowners’ claim for a refund of their deposit, was not a damages claim for a breach of contract but rather a claim for restitution where the contract was terminated for breach (at [27], [28]).
(ii) On appeal, it was determined to be a claim in restitution for moneys had and received, where money had been paid with a total failure of consideration. This requires a factual analysis to determine whether the homeowners received any part of the benefit bargained for under the contract or purported contract. Total failure of consideration is established if the benefit received was trivial, or if it could be shown that that consideration was severable. In this case, whilst there was part performance, it only concerned the demolition of a window and small wall in preparation for the installation. This was taken to be a “minimal” part of the contract and of no benefit. Consequently, there was total failure of consideration because the benefit received by the homeowners was both minimal and severable (at [29], [32], [38], [40], [42], [43]).
(iii) The Tribunal also erred when it failed to consider making a “work order” in lieu of damages per s 48MA of the Home Building Act 1989 (NSW). Whilst making a work order is not mandatory, it was mandatory to consider whether such an order should be made in the circumstances. But for the success of the homeowners restitution claim, a work order would have been made (at [46], [47], [48], [50]). |
2. Did NCAT have the power to make an order for a supplier to be indemnified by the manufacturer under s 274 Australian Consumer Law 2010? |
Royal Flair Caravans Pty Ltd v Kylie Ryan Productions Pty Ltd [2022] NSWCATAP 215 Consumer and Commercial Division A Suthers, Principal Member; P Durack SC, Senior Member
In sum: The appellant’s challenge to the Tribunal’s jurisdiction and power to make an indemnification order against a manufacturer failed. The introduction of the Australian Consumer Law 2010 (ACL) did not preclude the Tribunal from determining indemnification claims pursuant to s 274. The Tribunal has concurrent jurisdiction with the Court to hear consumer claims which fall under s 274 of the ACL.
Facts: A caravan was purchased from the appellants (RFC), which was not of acceptable quality. RFC succeeded in a claim against the respondents (KRP) who were the manufacturer of the caravan, based upon breaches of the statutory guarantees under the Australian Consumer Law 2010 (ACL). KRP also succeeded in obtaining orders against RFC under the indemnity provisions in s 274 ACL. These orders were obtained in relation to KRP’s liability to the purchaser for the reduction of the value of the caravan and the costs orders. The Tribunal found that RFC and KPR were jointly and severally liable. RFC appealed on two grounds, first that only a Court, not a Tribunal, could make the order which was sought by KRP and second, that the conditions for liability under s 247 ACL had not been established. Leave to raise the new point on appeal was granted where the challenge to the Tribunal’s jurisdiction to make orders was important to determine.
Held (allowing the appeal):
(i) Properly construed, s 274 ACL provides a statutory cause of action which enables the Tribunal to exercise its power to make an indemnification order. The explicit text of s 274(1) sufficiently identifies the nature and scope of the liability to indemnify, particularly where all the “ingredients” of a statutory cause of action to establish liability are also stipulated in s 274(2). This includes the elements for a claim for relief, the nature of the relief (an indemnity) and the result (where the manufacturer is liable to indemnify the supplier). Consequently, it is reasonable to infer that the legislature implicitly intended for liability to be recovered by legal proceedings for a specified sum of money in order to achieve indemnity. Absent any expression of the exclusive jurisdiction of the Courts to determine the cause of action in s 274, there was little to challenge the jurisdiction of the Tribunal to determine the claim (at [44],[47],[48],[51],[53],[80]).
(ii) Consumer claims have remained within the Tribunal’s jurisdiction, despite the introduction of the ACL, and operate concurrently with the Courts. It is particularly relevant that “[t]here was no contraction of tribunal jurisdiction at the time of the introduction of this “consumer claim” tribunal jurisdiction into the FTA in October 2015. Tribunals are included as a “Court” for actions commenced under Part 2-3 of the ACL (albeit s 274 is not contained in those parts). However, as stated in the decision of Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, the ACL and the Fair Trading Act 1987 (into which the ACL was incorporated in 2011) “operate together sensibly and efficiently” without precluding the other. On proper construction of the legislation, where section 271 and 272 applications (concerning a claim by a purchaser against a manufacturer) can be determined in NCAT as they do not refer to proceeding in a “Court”, it would seem unlikely that related legislation, in s 274, should be dealt with exclusively by the Court. Such a construction would be inefficient, inconvenient and could lead to potential injustice. Consequently, any construction which led to a contradiction between relevant sections of the ACL and the need to “read down” the operation of consumer claims provisions to resolve the dispute between RFC and KPR was rejected as NCAT has the jurisdiction and power to make indemnification orders under s 274 ACL (at [61], [74],[76],[80], [82],[85],[86]). |
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Kassis v Maher [2022] NSWCATAP 181 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: APPEALS – Procedural fairness – Hearing rule – whether the appellant was denied procedural fairness because he not able to appear at the hearing of the Tribunal at first instance – APPEALS – Procedure – Leave to appeal – whether there is significant new evidence which was not reasonably available to the appellant at the time of the Tribunal hearing |
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Moslemi v Pearce [2022] NSWCATAP 183 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member; D Ziegler, Senior Member Catchwords: APPEAL – question of law – other error – no question of principle |
The Owners – Strata Plan No 63607 v Kinsella [2022] NSWCATAP 184 Consumer and Commercial Division – Strata Schemes Decision of: L Wilson, Senior Member; G Burton SC, Senior Member Catchwords: STRATA SCHEMES MANAGEMENT – obligation of owners corporation to maintain and repair common property – alleged unauthorised works agreed to be common property – liability for later repairs |
Commissioner of Victims Rights v Lechminka [2022] NSWCATAP 185 Administrative and Equal Opportunity Division Decision of: K Ransome, Senior Member; G Furness SC, Senior Member Catchwords: APPEAL – victims rights – restitution order made against offender – no evidence to support finding of fact – application of repealed legislative provision – wrong principle of law applied |
The Owners – Strata Plan No 77559 v Touma; Touma v The Owners – Strata Plan No 77559 [2022] NSWCATAP 186 Consumer and Commercial Division – Strata Schemes Decision of: T Simon, Principal Member; S Goodman, Senior Member Catchwords: STRATA TITLE – awarding damages to a lot owner for breach of the statutory duty in s 106(1) of the Strata Schemes Management Act 2015 – duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation – whether the Tribunal had power under s232 of the SSMA to order the owners corporation to rectify damage to lot owner’s property – whether breach of s106(1) established – whether works to common property and repair to lot property can be order in the absence of an occupation certificate under the Environmental Planning and Assessment Act 1979 (NSW) – APPEAL – question of law – adequacy of reasons |
Marinko v The Owners – Strata Plan No 7596 [2022] NSWCATAP 18 Consumer and Commercial Division Decision of: P Durack SC, Senior Member; D Robertson, Senior Member Catchwords: LAND LAW – Strata titles – application for the appointment of a compulsory strata manager under s 237 of the Strata Titles Management Act 2015 (NSW) (SMA) – alleged failure by the owners corporation to comply with consent orders made in earlier proceedings in respect of rectification work to be done for the benefit of a lot owner, including to raise special levies – alleged breach by the owners corporation of s 106 of the SMA – costs order made against the lot owner in dismissing his proceedings against the owners corporation on the basis he was the unsuccessful party – APPEAL – alleged errors of law, principally, by the Tribunal failing to respond to substantial and significant submissions and supporting evidence – whether Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) was applicable to the proceedings at first instance and, hence, on appeal by reason of Rule 38A |
Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 Consumer and Commercial Division – Strata Schemes Decision of: S Westgarth, Deputy President; A Suthers, Principal Member Catchwords: APPEAL – interim order to restore lessee to premises – issues for tribunal’s consideration – appeal from an interlocutory decision – leave required. |
Latimer v Latimer (No 2) [2022] NSWCATAP 190 Consumer and Commercial Division – Residential Tenancies Decision of: S Westgarth, Deputy President; L Wilson, Senior Member Catchwords: APPEAL – Costs of appeal – No special circumstances. |
Nikiforova-Grigorieva v Li [2022] NSWCATAP 191 Consumer and Commercial Division – Residential Tenancies Decision of: Dr R Dubler SC, Senior Member; D Ziegler, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – termination – non-payment termination notice – where no notice at date of application to Tribunal – where date for termination in the future – APPEALS – denial of procedural fairness – use of interpreter |
Robinson v Quick Built Systems Pty Ltd [2022] NSWCATAP 192 Consumer and Commercial Division – Home Building Decision of: L Wilson, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – leave to appeal – no transcript or sound recording of hearing before Tribunal – limited and incomplete evidence on appeal – unable to determine whether Tribunal’s findings were not fair and equitable or against the weight of evidence – no substantial miscarriage of justice – no issue of principle |
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Morgan v Barker [2022] NSWCATAP 194 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; P Molony, Senior Member Catchwords: APPEALS – Procedural fairness – Bias or apprehension of bias – APPEALS – Procedural fairness – Hearing rule – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – residential tenancy – claim by tenants for return of rental bond and compensation – principles in awarding damages for distress, anxiety and disappointment |
Worrall v The Owners – Strata Plan No 43357 [2022] NSWCATAP 195 Consumer and Commercial Division – Strata Schemes Decision of: I R Coleman SC ADCJ, Principal Member; D Ziegler, Senior Member Catchwords: COSTS – appeals – whether rule 38 of the Civil And Administrative Tribunal Rules 2014 applies – whether special circumstances |
Asirvadem v Wesley Community Services Ltd [2022] NSWCATAP 196 Consumer and Commercial Division – Social Housing Decision of: P Durack SC, Senior Member; L Wilson, Senior Member Catchwords: LANDLORD and TENANT – social housing residential tenancy – claim for arrears of rent and as to amount of rent to be paid – previous consent order for increased rent to be paid – jurisdiction of the Tribunal to make orders involving calculation of rent for social housing – orders based upon previous consent orders as to the amount of rent and uncontroversial fact that the tenant had not paid the increased rent the subject of those orders – simple mathematical calculation as to the amount of rental arrears – APPEAL–contention that Tribunal had no jurisdiction to make the orders appealed from – other errors alleged, including bias, procedural unfairness lack of informed consent from the tenant – no evidentiary support for these allegations and contentions – adjournment request refused |
Lendlease Retirement Living Holding Pty v Closebourne Village Residents Committee [2022] NSWCATAP 19 Consumer and Commercial Division – Retirement Villages Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: RETIREMENT VILLAGES – approval of budget – provision of information to residents’ committee under section 114 of the Retirement Villages Act 1999 – approval by the Tribunal under section 115 of the Retirement Villages Act 1999 of expenditure under a proposed village budget |
Freeman-Vagg v Oldstream Pty Ltd [2022] NSWCATAP 198 Consumer and Commercial Division – Community Schemes Decision of: C Fougere, Principal Member; G Curtin SC, Senior Member Catchwords: LEASES AND TENANCIES – retail leases – unconscionable and other misconduct alleged against the lessor – no errors in findings of fact – no question of principle – COSTS – party/party – orders against non-parties – personal costs orders against legal practitioners – power of NSW Civil and Administrative Tribunal to make costs orders against non-parties – power of NSW Civil and Administrative Tribunal to make costs orders against legal practitioners – principles to apply to applications for costs against non-parties – principles to apply to applications for costs against legal practitioners |
Higgins v NSW Land and Housing Corporation [2022] NSWCATAP 199 Consumer and Commercial Division – Social Housing Decision of: Dr R Dubler SC, Senior Member; D Ziegler, Senior Member Catchwords: APPEAL – PRACTICE AND PROCEDURE – evidence – whether the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 supplemented by s 140 of the Evidence Act 1995 (NSW) applies to the fact finding of the Tribunal – residential tenancy – finding that the tenant, who is not a qualified electrician, caused a fire by illegally installing a power point – whether there was no evidence to justify such finding – whether such finding was unreasonable or illogical – whether leave to appeal should be granted – whether the finding of the Tribunal was against the weight of the evidence |
Barkat v Sun [2022] NSWCATAP 200 Consumer and Commercial Division – Residential Tenancies Decision of: S Thode, Senior Member; A Boxall, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – oral tenancy agreement – NSW Civil And Administrative Tribunal – no issue of principle |
Weston v Integra Windows and Doors Pty Ltd [2022] NSWCATAP 201 Consumer and Commercial Division – Home Building Decision of: S Thode, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS – HOME BUILDING – responsibility of builder or supplier for defective work COSTS – procedural fairness – no opportunity to respond |
Dong v The Owners – Strata Plan 44092 [2022] NSWCATAP 202 Consumer and Commercial Division – Strata Schemes Decision of: G Ellis SC, Senior Member; A Boxall, Senior Member Catchwords: APPEAL – Notice of Appeal lodged more than 21 months late – No evidence provided to first instance hearing – Application breached mediation agreement |
Jamaican Coffee kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Consumer and Commercial Division – Commercial Decision of: G Blake AM SC, Senior Member; G Burton SC, Senior Member Catchwords: APPEALS – procedural fairness – failure to give reasons – adequacy of reasons – COSTS – party/party – appeals – amount in dispute exceeds $30,000 – general rule that costs follow the event – application of the rule COSTS – party/party – exceptions to general rule that costs follow the event – proceedings at first instance – amount in dispute exceeds $30,000 – separable issues – application of the rule – LEASES AND TENANCIES – retail leases – retail shop lease – lessor in breach of obligations – where lessor failed to provide disabled toilet and to clean toilets – LEASES AND TENANCIES – retail leases – retail shop lease – where lessee claimed lessor breached covenant of quiet enjoyment by water ingress – LEASES AND TENANCIES – retail leases – retail shop lease – where lessee claimed lessor engaged in misleading or deceptive conduct – LEASES AND TENANCIES – retail leases – retail shop lease – where lessee claimed lessor engaged in unconscionable conduct – LEASES AND TENANCIES – retail leases – retail shop lease – where COVID-19 regulatory regime required rent to be renegotiated in good faith by lessor and lessee – where lessor failed to renegotiate in good faith – whether the tribunal has power to vary the lease |
Marinellis v NSW Land and Housing Corporation [2022] NSWCATAP 204 Consumer and Commercial Division – Residential Tenancies Decision of: G Curtin SC, Senior Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing – termination of social housing agreements – no question of principle |
Almedyab v Gregory [2022] NSWCATAP 205 Consumer and Commercial Division – Social Housing Decision of: D Robertson, Senior Member; P Durack SC, Senior Member Catchwords: LEASES AND TENANCIES – Residential tenancies – arrears of rent – alleged offsetting claim – APPEALS – alleged procedural unfairness in failing to hear an alleged offsetting claim – subsequent dismissal of offsetting claim in separate proceedings – no utility in appeal |
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Lyon v Frenbray Pty Ltd [2022] NSWCATAP 207 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: CONSUMER LAW – Misleading or deceptive conduct – Representations as to future matters – representations as to future matters deemed to be misleading – causation – damages – difficulties with proof of damage – Tribunal must do the best it can to estimate damages – CONSUMER LAW – suppliers of goods and services to disclose prejudicial terms relating to supply – intermediaries to disclose referral fees and commissions – breach – local contravention – compensation – CONTRACTS – Construction – Interpretation – background – oral conversation preceding written document – no determination by Tribunal whether contract partly oral and partly in writing – constructive failure to exercise jurisdiction – Tribunal overlooking or misreading written term |
Seymour v Wu [2022] NSWCATAP 208 Consumer and Commercial Division – Residential Tenancies Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: LEASES – residential tenancy – rent arrears – challenge to rent increases-whether any rent increase notices given-application of s 41 (10) of the Residential Tenancies Act 2010 (NSW) – claim that rent excessive – claim for a rent reduction due to alleged frustration – “clean hands” defence to landlord’s claim not available – APPEALS –alleged bias not established – no error of law in failing to consider undeveloped and unsubstantiated claim and another claim that was misconceived-no other error of law or appealable error-leave to appeal refused |
Graham v Caravans & Motorhomes Pty Ltd t/as Jayco Newcastle [2022] NSWCATAP 209 Consumer and Commercial Division – Motor Vehicles Decision of: D Robertson, Senior Member; P Durack SC, Senior Member Catchwords: COSTS – Civil and Administrative Tribunal Rules, rule 38 – amount claimed or in dispute – failure to consider whether rule applies – proceedings settled by consent orders – whether appellant was almost certain to have succeeded – whether respondent effectively capitulated |
Nelson v Ivy Landscapes Pty Ltd [2022] NSWCATAP 210 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – NSW Civil and Administrative Tribunal – internal appeal – application for leave to appeal pursuant to Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c) – new evidence not proved to have not been reasonably available at the time of the Tribunal hearing – no question of principle |
M&R Etri and Amani Farming Pty Ltd v M&R Desai [2022] NSWCATAP 211 Consumer and Commercial Division – Commercial Decision of: S Westgarth, Deputy President; C Fougere, Principal Member Catchwords: APPEAL – extending time for lodgement – agreement made between the parties subsequent to the orders at first instance having the effect of setting aside the orders at first instance – appeal moot |
Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Consumer and Commercial Division – Home Building Decision of: G Curtin SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – NSW Civil and Administrative Tribunal – internal appeal – Tribunal erred in fundamentally misunderstanding the appellants’ case and was therefore a constructive failure to exercise jurisdiction – restitution – money had and received – total failure of consideration – what is total – trivial or de minis benefit – benefit judged from the position of the innocent party – severability or apportionment of consideration – BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – rectification order – mandatory consideration – failure to consider a question of law |
Majoor v Macquarie University [2022] NSWCATAP 213 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; G Blake AM SC, Senior Member Catchwords: APPEAL – question of law – failure to exercise jurisdiction – duty to self-represented parties |
Nguyen v Tisher [2022] NSWCATAP 214 Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; A Boxall, Senior Member Catchwords: APPEAL – Whether decision just and equitable – Whether decision against the weight of the evidence – Whether new evidence not reasonably available – COSTS – Whether special circumstances warranting an order for costs |
Royal Flair Caravans Pty Ltd V Kylie Ryan Productions Pty Ltd [2022] NSWCATAP 215 Consumer and Commercial Division – Motor Vehicles Decision of: A Suthers, Principal Member; P Durack SC, Senior Member Catchwords: CONSUMER LAW – claim by supplier to be indemnified by the manufacturer under s 274 of the Australian Consumer Law, NSW – both supplier and manufacturer found liable to purchaser of caravan for reduction in value flowing from breach of consumer guarantee of acceptable quality – whether Tribunal has jurisdiction and power to determine indemnity claim given the reference to making a claim in a court in s 274 (3) – in any event, whether conditions for indemnity in s 274 (1)(a) were satisfied-other issues concerning manufacturer’s liability to indemnify the supplier in respect of the Tribunal’s costs order against the supplier in favour of the consumer in the proceedings brought by the consumer against the supplier – APPEALS – questions of law concerning jurisdiction of the Tribunal and power to make indemnity orders sought. |
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Anderson v Chew [2022] NSWCATAP 218 Consumer and Commercial Division – Residential Tenancies Decision of: G Curtin SC, Senior Member; D Goldstein, Senior Member Catchwords: COSTS – no question of principle |
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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. |
