NCAT Legal Bulletin Issue 2 of 2023
The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the High Court of Australia, the Court of Appeal of New South Wales, Court of Appeal of Western Australia, Supreme Court of NSW and the NSW Civil and Administrative Tribunal published in March and April 2023.
Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf the Parras Family Trust & Ors [2023] HCA 6: In constructing the contractual obligation on the vendor to “carry on the Business in the usual and ordinary course as regards its nature, scope and manner”, the High Court had regard to its contractual context, circumstances surrounding the contract, its commercial purpose and objects. The Court found that there was an inherent requirement for the vendor to perform its obligation in accordance with the law. There could not have been an obligation to carry on the business unlawfully; the lawfulness of the business was objectively essential and a commercial necessity. Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd [2023] NSWCA 33: The Court of Appeal found that the primary judge had not denied the parties procedural fairness if (or where) he had construed the contract on a basis that had not been led by either party but was plainly available from the words of the document. There was no obligation on the primary judge to inform the parties that he was considering taking such a course. Attorney General for New South Wales v FJG [2023] NSWCA 34: The Court of Appeal held that NCAT is able to refer questions of law to the Supreme Court where it exercises its incidental jurisdiction. Where NCAT exercises its administrative review jurisdiction in a merits review, there is no “matter” within the meaning of the Constitution and NCAT may refer questions of law arising in the proceedings under a Commonwealth law or the Constitution. The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35: The Court of Appeal held that time to bring a claim under s 106(6) of the Strata Schemes Management Act 2015 (NSW) starts to run from when the lot owner first becomes aware of the loss, even where the breach is of an ongoing nature. Larsen v Tastec Pty Ltd [2023] NSWCA 39: The Court of Appeal found that the primary judge had erred in considering the misleading and deceptive conduct in isolation from its surrounding context. The conduct of the person alleged to have misled or deceived should have been considered as a whole, and reliance should have been assessed at the time that the owners entered into the variation to the contract. Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40: The Court of Appeal refused leave to appeal from a decision of the Appeal Panel, finding that no questions of law were raised before the Appeal Panel. Equally, no questions of law were raised in the Court of Appeal, bar a question as to whether NCAT had failed to exercise its jurisdiction and no such failure had occurred. Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44: The Court of Appeal confirmed the Land Tax Assessment notices issued by the appellant, which had refused to apply the exemption for land used for primary production in s 10AA(3)(b) of the Land Tax Management Act 1956 (NSW) (LTMA). Despite differing reasons for confirming the appellant’s notices, the majority agreed that the appropriate question to be asked was: “can it be said that the dominant use of the land in question was for one of the categories of a use-for-a-purpose identified” in s 10AA(3) of the LTMA? Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66: The Court of Appeal held that an amendment (outside of the limitation period) to a Technology and Construction List Statement which did no more than introduce further departures from the promised building by claiming for further defects did not give rise to a new cause of action which would require consideration under s 65 of the Civil Procedure Act 2005 (NSW). Instead, there was a single cause of action, complete when the defective structure was provided, irrespective of the number of ways in which those defects manifested. However, certain provisions under the Home Building Act 1989 (NSW) displace the rule as to res judicata for commencing proceedings for different defects. Scenic Tours Pty Ltd v Moore [2023] NSWCA 74: A majority of the Court of Appeal held that the heads of damage in s 267 of the Australian Consumer Law presuppose that a transaction has taken effect. The rights of consumers in relation to a breach of the consumer guarantees do not, in themselves, provide a means of obtaining compensation on a no-transaction basis. Medical Board of Australia v Adams [2023] WASCA 41: The WA Court of Appeal held that it was open to the WA State Administrative Tribunal to refuse to permit the appellant to cross-examine the respondent. There is no rule that procedural fairness requires a party be permitted to cross-examine. Whether procedural fairness requires a party be permitted to cross-examine is dependent on the circumstances. Singh v Carroll & Ors [2023] NSWSC 245: The Supreme Court summarily dismissed a Statement of Claim brought by a bankrupt insofar as it concerned property claims, on the basis that his interest in any such proceedings was vested in his trustee in bankruptcy and thus he had no standing to bring the proceedings. Mills v Martin-Brower Australia Pty Ltd [2023] NSWSC 253: The Supreme Court dismissed a summons alleging an apprehension of bias on the basis of prejudgment, where a Personal Injury Commission Member heard a liability dispute and subsequently sat on a Medical Appeal Panel regarding the medical assessment. The Court held that a fair-minded lay observer would be able to appreciate the distinction between the two tasks and appreciate that the Member had refrained in the liability dispute from making a finding as to the existence of an injury. Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265: The Supreme Court granted leave to appeal from the Appeal Panel, upholding the appeal in part and remitting the balance to the Appeal Panel for determination. The Appeal Panel had misconstrued and mischaracterised the Tribunal’s decision and findings of fact and so erred in overturning its decision. Further, s 31(1)(e) of the Retail Leases Act 1994 (NSW) (RLA) is relevant to the construction of s 31(1)(a) and so an assessment of whether legally adequate reasons (in compliance with the RLA) have been provided was a necessary task for the Tribunal at first instance to undertake. Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280: The Court of Appeal summarily dismissed the claims brought against NCAT Members and Registrars. Clause 4 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) confers judicial immunity on NCAT Members in the exercise of their functions as Members, and the principles of derivative immunity mean NCAT Registrars enjoy the same protection. Judicial immunity and derivative immunity were complete answers to the claims against the NCAT Members and Registrars. Colin Davidson v Seachange Living NSW Pty Ltd [2023] NSWSC 292: The Supreme Court refused leave to appeal a decision from the Appeal Panel which had refused leave to appeal a decision of the Tribunal. The Tribunal was precluded under s 73(4) of the Residential (Land Lease) Communities Act 2013 (NSW) from reducing the proposed increase to site fees on the basis that it was “excessive” as a result of its fact-finding; it could not have made the order sought by the home owners. Whilst the Court expressed a tentative view that the home owners did not bear the onus of proof, such a view was ultimately not relevant to the appeal. El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329: The Supreme Court held that there was no denial of procedural fairness where the first plaintiff was not the tenant in the residential tenancy agreement and so had no right to be heard. In any event, the first plaintiff was heard in full in his subsequent application to the Tribunal to be joined as a party to the earlier proceeding. Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416: The Supreme Court held that whether a lease is a retail lease is a jurisdictional fact for the exercise of NCAT’s jurisdiction under the Retail Leases Act 1994 (NSW). To determine the existence of the jurisdictional fact, consideration is to be given to the actual use of the premises in the particular circumstances, at the date the application is lodged with NCAT. Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75 and Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76: The Tribunal found that its task under s 64 of the Public Health Act 2010 (NSW) (PHA) – an inquiry into the circumstances surrounding the making of a public health order – had no counterpart in any other legislation and was distinct from administrative review. The primary purpose of the inquiry is to ensure that the procedural and substantive requirements and pre-requisites necessary for the making of the public health order under the PHA have been met and that no irrelevant considerations have been taken into account. The Tribunal varied and then confirmed as varied the relevant public health order regarding FRC, who suffered from Human Immunodeficiency Virus. It was subsequently found necessary to continue the relevant public health order as on the evidence before the Tribunal, FRC would continue to be a risk to public health should he stop complying with the public health order.
| | | Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf the Parras Family Trust & Ors [2023] HCA 6 8 March 2023 – Kiefel CJ, Gageler, Gordon, Gleeson, Jagot JJ
In sum: The obligation on the vendor to “carry on the Business in the usual and ordinary course as regards its nature, scope and manner”, properly construed from the perspective of a reasonable businessperson in its contractual context, the circumstances surrounding the contract and its commercial purpose and objects, incorporated an inherent requirement to do so in accordance with the law. The past, present and anticipated future lawfulness of the operation of the business was objectively essential and a commercial necessity. There was no – and could not have been – an obligation to carry on business unlawfully. The obligation on the vendor was necessarily shaped by, and subject to, the operation of the law from time to time.
Catchwords: CONTRACT – Construction – Where clause in contract for sale and purchase of property and assets of hotel business obliged vendor from contract date until completion to carry on business in "usual and ordinary course as regards its nature, scope and manner" – Where hotel business operated pursuant to licence and gaming machine entitlements – Where hotel business subject to variable licence conditions imposed under Liquor Act 2007 (NSW) and regulations – Where operation of business prior to completion restricted by public health order in response to COVID-19 pandemic – Whether vendor obliged to carry on business in manner conducted as at time of contract to extent lawful – Whether vendor "ready, willing and able to complete and ... not in default" at time vendor served notice to complete.
Held (allowing the appeal):
(i) Link to the High Court’s case summary is here.
Read the decision on the High Court of Australia website. | Court of Appeal of New South Wales | Media Niugini Ltd t/as EMTV v International Management Group of America Pty Ltd [2023] NSWCA 33 2 March 2023 – Gleeson, Leeming and White JJA
In sum: There was no denial of procedural fairness if (or where) the primary judge construed the contract (the existence of which was in dispute) on a basis that was not led by either party but was plainly available on the words of the document. Further, the primary judge was not under an obligation to inform the parties if he was considering adopting that construction in order for the parties to be heard on the matter. It was always open to the appellant, who was represented by experienced solicitors and senior counsel, to put an alternative case, and nothing that the primary judge had done deprived the appellant of that opportunity.
Catchwords: APPEALS – Practice and procedure – Procedural fairness – Duty to inform parties of proposed departure from basis upon which case is conducted – Where trial judge said to have adopted construction of commercial contract different from those proffered by parties during hearing – Where trial judge’s conduct said to constitute failure to accord procedural fairness to parties – Where principal issue at trial was existence, rather than construction, of contract in question – Whether trial judge’s failure to alert parties to proposed construction was procedurally unfair – Whether trial judge actually decided proper construction of contract – held that trial judge’s conduct and findings evince no failure to accord procedural fairness – APPEALS – Scope of appeals – New point taken on appeal – Principle of finality – Where appellant did not raise questions of construction at first-instance in answer to respondent’s claim for damages for breach of contract – Where construction of contract raised on appeal under guise of procedural fairness as ground for avoiding liability – Where questions of construction readily apparent and able to be raised at first-instance – No issue of principle
Held (refusing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Attorney General for New South Wales v FJG [2023] NSWCA 34 6 March 2023 – Bell CJ, Ward P, Beech-Jones JA
In sum: NCAT is able to refer questions of law to the Supreme Court where it exercises its incidental jurisdiction, which involves determining whether the matters before it require the exercise of federal jurisdiction. Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 provides this qualified overruling of Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14. It remains that NCAT cannot refer questions of law in matters involving the exercise of federal jurisdiction for final determination by the Supreme Court. In any event, the defendants sought merits review of an administrative decision and so their application to NCAT was not a “matter” within the meaning of Ch III of the Constitution and the questions of law arising under a Commonwealth law or the Constitution could be referred to the Court. It was not necessary for the Court of Appeal to answer the questions of law referred to it by the Appeal Panel, as the parties had sought, and the Court had made, declarations on the same issues.
Catchwords: STATUTORY INTERPRETATION – power to correct particulars of a marriage entered in NSW Register of Births, Deaths and Marriages – Birth, Deaths and Marriages Registration Act 1995 (NSW), s 45 – FJG and FJH married in NSW in 2009 – Register’s entry of their marriage included FJG’s personal details under the description “bridegroom” – Births, Deaths and Marriages Registration Act 1996 (Vic) – FJG born in Victoria and original birth certificate recorded sex as male – FJG subsequently effected a change of name under Pt 4 of Victorian Act in 2018 – FJG acknowledged her sex as “female” under Pt 4A of Victorian Act in 2020 – couple applied to have Registrar “correct” the entry for their marriage pursuant to s 45 to reflect FJG’s change of name and acknowledgement of sex – Registrar refused application – NCAT upheld application for review of Registrar’s decision – Registrar filed an internal appeal against NCAT’s decision – Appeal Panel referred questions of law to the Court – whether s 45 enables the Registrar to “correct” the Register’s entry for the marriage to reflect FJG’s change of name and acknowledgment of sex – held power to correct the Register does not extend beyond ensuring the particulars of the marriage that are recorded in the Register accord with the “official certificate of marriage” prescribed by the Marriage Act − whether s 45 permits a “correction” of the Register that would render an entry inconsistent with a certificate issued under s 50 of the Marriage Act 1961 (Cth) and, if so, to the extent it purports to so operate whether s 45 is rendered inoperative by s 109 of the Constitution – s 45 cannot require the correction of the Register in a way that is inconsistent with the “official certificate of marriage” produced under s 50 of the Marriage Act – no inconsistency under s 109 of the Constitution – whether s 45 authorises a “correction” that would amend the particulars of a marriage so that it records a marriage between persons of the same sex if, at the time of the marriage, same sex marriage was not lawful – issue does not arise – JURISDICTION – Constitutional law – judicial power – State tribunal – whether NCAT had the jurisdiction or power to refer questions of law involving a Commonwealth law or the Constitution to the Supreme Court − whether the proceedings before NCAT involved the exercise of federal jurisdiction – NCAT’s “incidental jurisdiction” does not extend to a final determination of any genuine question arising under a Commonwealth law or the Constitution – application to NCAT to review decision of Registrar did not involve a “matter” within the meaning of Ch III of the Constitution and thus did not involve the exercise of federal jurisdiction – in the exercise of its power to conduct merits review NCAT could refer to the Court such questions of law – RELIEF – declarations – should not be made so as to potentially apply to facts and circumstances that may be materially different to present case
Held (finding the questions referred by NCAT “unnecessary to answer”):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35 6 March 2023 – Gleeson, Mitchelmore and Kirk JJA
In sum: On the proper construction of s 106(6) of the Strata Schemes Management Act 2015 (NSW) (SSMA), time to bring a claim commences when the lot owner first becomes aware of the loss, even where the breach of s 106(1) of the SSMA is of a continuing nature. Where the loss remains the same, knowledge or awareness of the loss does not reset for each day that the breach continues. A fresh cause of action would only arise from a fresh breach which causes loss that goes beyond the loss resulting from the statute-barred cause of action.
Catchwords: LAND LAW – strata title – owners corporation –maintenance and repair of common property – breach of obligation to maintain and repair common property – where unit affected by water leakage – where respondent lot owner unsuccessfully attempted to rent out unit in 2016 – action for recovery of loss of rent from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act – STATUTORY INTERPRETATION – limitation of action – where claim made on 6 November 2020 for loss of rent pursuant to s 106(5) of Strata Schemes Management Act 2015 (NSW) – whether claim was time barred by s 106(6) of that Act – whether respondent first became aware of the loss in 2016 or on 6 November 2018 – whether “the loss” in s 106(6) refers to the kind or type of loss that the lot owner is entitled to recover under s 106(5) or the particular loss that she is seeking to recover – APPEALS – cross-appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – where appeal with leave limited to a question of law – whether grounds of cross-appeal raised questions of law
Held (allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Larsen v Tastec Pty Ltd [2023] NSWCA 39 9 March 2023 – Ward P, Mitchelmore and Kirk JJA
In sum: In assessing a claim of misleading and deceptive conduct, the conduct of the person alleged to have behaved in a misleading or deceptive manner must be viewed as a whole – the primary judge erred in considering the conduct in isolation from its surrounding context. Rather, it is necessary to objectively consider and determine the character of the conduct in relation to the complainant, taking into account what matters of fact each knew about the other as a result of their dealings and conversations. There is no requirement that the contravening conduct be the sole cause of loss, but it must “make some non-trivial, material, or substantial contribution to the decision of a claimant to act in a particular way” (applying I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109).
Catchwords: CONSUMER LAW – misleading or deceptive conduct – where appellants engaged first respondent for the supply and assembly of a pre-fabricated house – where representations made by respondents regarding the cladding material to be used under the contract – where appellants, in reliance on the representations, agreed to a contractual variation regarding cladding material – whether cladding representations were misleading or deceptive – whether appellants suffered loss or damage as a result of agreeing to contractual variation in reliance on cladding representations – CONTRACTS – breach of contract – breach of express terms – defective performance – whether respondents breached express terms of contract related to supply and installation of doors and windows – CONTRACTS – parties – where dispute as to whether appellants entered into contract in their personal capacity or as trustees of their superannuation fund – whether appellants’ claim, which was brought in their capacity as trustees of their superannuation fund, could be maintained
Held (allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 14 March 2023 – Meagher and Leeming JJA, Griffiths AJA
In sum: The Appeal Panel did not err in dismissing the appeal because no questions of law were raised before it, and the Appeal Panel did not fail to exercise its jurisdiction because it addressed every ground of appeal. Equally, no question of law was raised in the draft notice of appeal to the Court of Appeal (bar the question as to whether the Appeal Panel failed to exercise its jurisdiction). The restriction of certain appeals to questions of law is an element of the limited grant of jurisdiction conferred by the statutes which create the rights of appeal. It is trite that the distinction between what is and what is not a question of law is vexed and context dependent. However, it is insufficient to make a mere assertion that the Tribunal erred in law (or to merely allege “error”) in order to meet that limited conferral of jurisdiction. The Court of Appeal refrained from articulating a clear test as to what is (or is not) a question of law for the purpose of s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).
Catchwords: TAXES AND DUTIES – payroll tax – taxable wages – relevant contracts – taxpayer operated medical centres – taxpayer contracted with medical practitioners to practise at centres on terms that medical practitioners would pay 30% of medicare benefits received to applicant – taxpayer made claims on Medicare on behalf of most medical practitioners and remitted 70% to them – whether amounts paid by taxpayer to medical practitioners deemed to be taxable wages – whether medical practitioners supplied services to taxpayer – whether payments made for or in relation to the performance of work relating to relevant contract – whether determination by NCAT that medical practitioners supplied services to taxpayer (as well as to patients) gave rise to any question of law
Held (refusing leave to appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Zioukin v Lang [2023] NSWCA 42 17 March 2023 – Leeming and Kirk JJA
In sum: No sound basis for a grant of leave was contained in the proposed grounds of appeal and the application for leave did not advance any proposition or principle of general importance.
Catchwords: APPEAL – application for leave – unrepresented applicant – application for vacation of hearing made on day – no sufficient basis shown – no basis for grant of leave
Read the decision on the Caselaw website. | Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44 20 March 2023 – Kirk JA, Simpson and Griffiths AJJA
In sum: At issue was the proper construction of the section and the interaction of the concepts of “use” and “purpose” in s 10AA(3)(b) of the Land Tax Management Act 1956 (NSW) (LTMA). Kirk JA (Simpson AJA agreeing on the characterisation) stated that the dominant use of the land must be for one of the identified purposes – the concepts were distinct but commonly linked. The appropriate question to be asked was “can it be said that the dominant use of the land in question was for one of the categories of a use-for-a-purpose identified” in s 10AA(3) of the LTMA? Kirk JA held that combining the two purposes for which the respondent used the land did not convert the activities or purposes into one; ultimately, the respondent’s racing activities were the dominant use-for-a-purpose. Simpson AJA found that the two purposes were integrated, complementary or mutually reinforcing, and as such neither purpose prevailed or was dominant – the respondent could not establish the dominant use of the land fell within s 10AA(3)(b) of the LTMA. Griffiths AJA, in dissent, agreed with Simpson AJA that the symbiotic relationship of the activities undertaken by the respondent meant that it conducted an integrated operation. However, Griffiths AJA agreed with the primary judge’s characterisation that the overall or dominant purpose fell within s 10AA(3)(b) of the LTMA.
Catchwords: TAXES AND DUTIES – Land tax – Liability – Exemptions – Exemption for land used for primary production – Whether the dominant use of land was for the maintenance of animals for the purpose of selling them or their natural increase or bodily produce – Land used both for breeding, educating and training horses, and spelling them between races and for the sale of covering services and of progeny – Meaning of “dominant use” – Relationship between use and purpose
Held (allowing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Soulis v R & A Henry Auto Repairs Pty Ltd [2023] NSWCA 50 24 March 2023 – White JA and Simpson AJA
In sum: None of the proposed grounds of appeal were seriously arguable or challenged the substance of the primary judge’s reasons for summarily dismissing the appeal. Further, no questions of law or even error arising from the Appeal Panel’s reasons were identified. The appellant was unable to demonstrate that any denial of procedural fairness would be material.
Catchwords: APPEALS – Leave to appeal – Leave to appeal against summary dismissal of applicant's appeal from decision of Appeal Panel of New South Wales Civil and Administrative Tribunal – Where amount in dispute between parties negligible – Where summary dismissal followed applicant's non-appearance at two hearings set for respondents' motion to summarily dismiss proceedings – Where applicant's non-appearance explained on basis of serious medical condition requiring hospitalisation and later surgical intervention – Where applicant claims primary judge was biased in summarily dismissing his proceedings – Where applicant's claims before Tribunal and primary judge not shown to be reasonably arguable – Leave to appeal refused – No issue of principle
Read the decision on the Caselaw website. | Parkview Constructions Pty Ltd v The Owners – Strata Plan No 90018 [2023] NSWCA 66 17 April 2023 – Ward P, Leeming JA, Simpson AJA
In sum: The Owners’ Corporation’s (OC) motion to amend its Technology and Construction List Statement to include a further three defects after the expiration of the limitation period did not amount to introducing a new cause of action. The question of whether it introduced a new cause of action was considered in the context of whether the Court would be required to determine whether it arose from “the same (or substantially the same) facts” as set out in s 65(2) of the Civil Procedure Act 2005 (NSW) (CPA). The Court of Appeal held that none of the statutory modifications in Part 2C of the Home Building Act 1989 (NSW) (HBA) detracted from the OC’s claim being one for breach of contract – that is made clear by the wording of s 18BA(1) of the HBA. The conventional approach is that there is a single cause of action, which arises when a defective structure is provided, irrespective of the number of ways in which the defects manifest. On this approach, the OC’s amendment would not introduce a new cause of action over and above the existing causes of action. Regarding the principle of res judicata, it is unquestionable that it has been altered by amendments to the HBA (see, e.g., s 18E(2)). However, it does not follow, for the purpose of the amendment, that there is no longer a single cause of action. An amendment which does nothing more than introduce further departures from the promised building will not give rise to a new cause of action which would otherwise have been out of time (to which s 65 of the CPA is addressed), because the cause of action is for breach of the same contract. The Court refrained from deciding whether there would be a single cause of action where part of the damage is non-major defects and part is major defects.
Catchwords: BUILDING AND CONSTRUCTION – residential building work – statutory warranties under Home Building Act 1989 (NSW) – claims by owners corporation against builder and developer – whether claims statutory or contractual – whether single cause of action for breach of contract – whether amendments to introduce new defects more than six years after completion of building work should be permitted – consideration of Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730 holding that builder had res judicata defence when owners sought to raise further defects – consideration of amendments overturning result in Onerati – legislative amendments did not alter nature of claim for breach of contract – appeal from decision permitting owners corporation’s amendments dismissed
Held (granting leave to appeal; dismissing the appeal):
(i) Link to the Court of Appeal’s case summary is here.
Read the decision on the Caselaw website. | Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 20 April 2023 – Ward P, Kirk JA and Griffiths AJA
In sum: By majority, the Court of Appeal held that the primary judge had erred in awarding damages for wasted expenditure where the premise of the relevant claim was that the claimants should be returned to the position which they would have been in if they had not cruised at all. That premise was inconsistent with the other heads of damage in s 267 of the Australian Consumer Law (ACL), which presuppose the transaction has taken effect. The rights given to consumers relating to a breach of the consumer guarantees do not in themselves provide a means of obtaining compensation on a no-transaction basis.
Facts: In 2014, the respondent (Mr Moore) commenced representative proceedings on behalf of himself and approximately 1500 group members against the appellant (Scenic Tours) for breach of the consumer guarantees set out in ss 60 (due care and skill guarantee) and 61 (purpose guarantee and result guarantee) of the ACL in relation to 13 European river cruises conducted by it. The cruises had been substantially disrupted by the decisions and actions of Scenic Tours when it was confronted with high water levels on the rivers as a result of heavy rainfall and flooding, which included consumers being shuffled between different coaches and cruise ships and changing hotels multiple times, rather than being accommodated and conveyed on the cruise ships. On 31 August 2017, Garling J found that Scenic Tours had breached the purpose and result guarantees for 10 of the 13 cruises (not disturbed in the subsequent appellate process) and breached the due care and skill guarantee in respect of Cruises 1, 4-11 and 13 (some findings set aside on appeal). Garling J found that the defence under s 61(3) of the ACL did not apply as regarded Mr Moore, and awarded Mr Moore damages comprising compensation for both a reduction in the value of services (under s 267(3) of the ACL) and damages for distress and disappointment (under s 267(4) of the ACL). The Court of Appeal in part overturned the award of damages, but that decision was overturned by the High Court, which reinstated Garling J’s initial award of damages. The matter returned to Garling J for consideration of the availability of the defence in s 61(3) of the ACL regarding the other group members and assessed damages for a sample of group members. Garling J found that the s 61(3) defence did not apply. Garling J also awarded damages to various group members comprising one or more of: an amount representing the reduction in the value of services under s 267(3)(b) of the ACL; an amount for distress and disappointment under s 267(4) of the ACL; and an amount for the refund of airfares to and from Europe under s 267(4) of the ACL. Scenic Tours challenged the s 61(3) defence decision and the damages decisions.
Held (allowing the appeal in part):
(i) The Court of Appeal rejected Scenic Tours’ grounds challenging the finding that the s 61(3) defence did not apply. Garling J had properly considered the issues of partial and unreasonable reliance under s 61(3) and did not err in determining Scenic Tours’ s 61(3) defence without descending into a cruise-by-cruise basis. Scenic Tours’ argument that the relevant services were confined to cruising and did not extend to onshore activities was found by the Court to be unduly narrow and erroneous. The statutory guarantees encompassed a broader concept of services, consistent with Mr Moore and the group members’ pleaded case, the Terms and Conditions of the contract between Scenic Tours and the consumers, the tour itineraries and the conduct of the case until the present appeal. The statements made by Scenic Tours in its brochures and Terms and Conditions could not be relied upon by Scenic Tours as intimating to consumers that it could only be relied upon to provide the relevant services in ordinary circumstances and not in circumstances where it was impossible to do so. Properly constructed, the intimation was that even where events occurred that were beyond Scenic Tours’ control, consumers could reasonably rely upon Scenic Tours’ skill or judgment in those circumstances. The mere fact that consumers were encouraged to arrange comprehensive travel insurance (which was for unforeseen circumstances, as opposed to events which were foreseen but beyond Scenic Tours’ control) did not expressly or impliedly suggest that consumers could not rely on Scenic Tours’ skill and judgment in providing the services (at [171], [146], [149], [161], [112]-[129], [134]-[137], [158]).
(ii) Scenic Tours’ challenge to the award of damages for reduction in value was also rejected. Garling J did not err in preferring the lower valuations of Mr Moore’s expert and had made an allowance for vicissitudes. The expert correctly focussed on the market value of a cruise by reference to what a fully informed reasonable consumer would have paid for the cruise at the time of the booking. It was open to Garling J to conclude that Scenic Tours’ expert was “problematic”, having identified that its expert had not advised the Court that he had previously travelled for free as a guest of Scenic Tours and that his business had an ongoing commercial relationship with Scenic Tours. The expert also only revealed in cross-examination that he had considerable assistance from another individual in the preparation of his report and did not make detailed reference to the way he went about assessing the value (at [182], [173], [176], [180], [90]).
(iii) Scenic Tours’ challenge to the damages awarded for distress and disappointment was also rejected. The Court noted that each case necessarily turns on its own particular facts and circumstances, being “a very fact-rich and individual assessment”. Garling J had correctly noted that each group member was entitled to have their damages assessed on an individual basis whilst also having regard to the objectively determined facts regarding the extent to which each cruise failed to meet the purpose and result guarantees (at [199], [188]).
(iv) Kirk JA, with Ward P agreeing, upheld Scenic Tours’ challenge to the award of damages for airfares. The premise of the claim for airfares was that the claimants should be returned to the position which they would have been in if they had not cruised at all. Such a premise is inconsistent with the other two heads of damage, which presuppose the cruise occurred. The majority held that the rights granted to consumers as a result of a failure to comply with a consumer guarantee are of a kind that presupposes the transaction has taken effect – they do not in themselves provide a means of obtaining compensation on a no-transaction basis. The wasted airfares approach taken by Garling J in substance involved a no-transaction premise because it sought to compensate the claimants as if the transaction involving the consumer guarantees had not occurred. Further, Garling J had not made any findings that the relevant group members would not have gone on the tour if they had known the guarantees would be breached in the manner that occurred. Griffiths AJA, in dissent, found that there was no inconsistency where the damages awarded represented separate heads of compensation, and Scenic Tours’ conduct in breach of the guarantees was causative of the loss (at [45], [41], [29], [44], [37], [209]-[210]).
Read the decision on the Caselaw website. | Court of Appeal of Western Australia | Medical Board of Australia v Adams [2023] WASCA 41 3 March 2023 – Mitchell, Beech and Hall JJA
In sum: There is no rule that procedural fairness requires that a party be permitted to cross-examine. Whether procedural fairness requires a party be permitted to cross-examine depends on all the circumstances, though ordinarily it will be required where there is adverse evidence which goes to a core issue in the proceedings. In the “immediate action” proceedings before the Tribunal, there was a real risk of prejudice to the respondent in any subsequent substantive proceedings of being cross-examined in circumstances where he had not had a chance to hear all the evidence, particularly sworn evidence of the subjects of the complaints. In these circumstances, it was open to the Tribunal to refuse to permit the appellant to cross-examine the respondent.
Facts: On 15 June 2021, the appellant (Board) exercised its power to take immediate action under the Health Practitioner Regulation National Law (National Law) against the respondent (Dr Adams) after receiving two notifications that Dr Adams had engaged in misconduct of a sexual nature with the mothers of two of his patients. The Board suspended Dr Adams’ registration on the basis that it believed Dr Adams posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety. On 12 July 2021, Dr Adams applied to the WA State Administrative Tribunal (Tribunal) for review of the Board’s decision. Before the Tribunal, Dr Adams relied on his sworn affidavit, in which he denied the allegations and offered an undertaking. At the hearing, the Board sought leave to cross-examine Dr Adams with a view to demonstrating his lack of candour in order to demonstrate he could not be trusted to comply with his undertaking. The Tribunal expressed concern about the implications, fairness and necessity of cross-examining Dr Adams about the material which would be the subject of potential disciplinary proceedings, and ultimately refused to permit the Board to cross-examine Dr Adams. The Board appealed on the sole ground that the Tribunal’s refusal to permit cross-examination was an error of law because it was inconsistent with s 32(6)(c)(ii) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and because it was a denial of procedural fairness. Section 32(6)(c)(ii) relevantly provides: “The Tribunal is to take measures that are reasonably practicable … to ensure that the parties have the opportunity in the proceeding … to examine, cross-examine or re-examine witnesses.” In April 2022, the Board commenced substantive proceedings against Dr Adams.
Held (refusing leave to appeal):
(i) There is no rule that procedural fairness requires that a party be permitted to cross-examine. Whether procedural fairness requires it depends on all the circumstances; the significance of the evidence to be tested is often, if not usually, critical to whether procedural fairness requires that cross-examination be permitted. Ordinarily, procedural fairness will require a party be permitted to challenge by cross-examination evidence that is adverse to it in an important respect. How close the evidence is to the core of the issues in the proceedings should be considered (at [90], [91]).
(ii) Two features of “immediate action” under s 156 of the National Law tended against the grant of leave to cross-examine: determining what, if any, immediate action is appropriate does not involve determining what had occurred; and the question of what occurred may well fall to be determined by a future Tribunal in proceedings against the practitioner. Any cross-examination would be liable to give rise to unfairness in the subsequent substantive proceedings (at [92]-[94]).
(iii) The Court of Appeal found that the Tribunal was justified in refusing to grant leave to cross-examine, considering the likely limited utility of the proposed cross-examination and the evident prospect of real prejudice to Dr Adams. It was open to the Tribunal to come to the view that the evidence sought to be adduced through cross-examination would be of, at most, modest probative value. It was also open for the Tribunal to find that the risk of unfairness to Dr Adams counted firmly against a grant of leave, being liable to disadvantage him in his defence of the substantive proceedings, particularly in circumstances where neither of the subjects of the notification were exposed to cross-examination or had given their version of events on oath. The Tribunal appropriately exercised its discretion in considering the likely significance of evidence to be adduced in the context of the issues in the proceedings and the evidence as a whole (at [97], [101], [107]-[109], [105]).
(iv) The Court of Appeal was not satisfied it was in the interests of justice to grant leave to appeal. As a matter of substance, the decision under appeal was not final; the proceedings commenced in April 2022 would deal with the substance of the Board’s concerns. There was a risk that a remittal of the immediate action proceedings would make those proceedings the focus and slow down the progress of the substantive proceedings, which was not in the interests of justice. In any event, the rate of progress of both matters counted against the grant of leave. Further, at the core of the Board’s interests in the proceedings is the protection of public health and safety, and the ground of appeal was not directed to that topic. Success in the appeal would not require the Tribunal to make a different decision and a different decision was not probable. The merits of the appeal did not justify the grant of leave and the lack of judicial consideration of s 32(6) of the SAT Act did not assist the Board (at [62], [63], [73], [65], [64], [70], [75], [76]).
Read the decision here. | Supreme Court of New South Wales | Bovaird v Milstern Retirement Services Pty Ltd & Anor [2023] NSWSC 179 3 March 2023 – Chen J
In sum: To determine when the liability to pay charges under the retirement village contract ended, it was necessary to consider the definition of “permanent vacation” in s 8(d) of the Retirement Villages Act 1999 (NSW). The Appeal Panel did not err in confining the circumstances under which the resident could permanently vacate the premises to her death. That was because, not having moved in, the resident could not have moved out (absent evidence and findings that the resident’s actions constituted ‘moving out’). On the Tribunal’s findings (which were upheld by the Appeal Panel), no other conclusion was open.
Catchwords: APPEALS – from Civil and Administrative Appeals Tribunal only “with respect to a matter of law” – statutory interpretation – when a registered interest holder has permanently vacated residential premises – whether a person may ‘passively’ move out of residential premises under s 8 of the Retirement Villages Act – APPEALS – leave to appeal – no issue of principle or question of public importance - where application of facts to statutory test
Read the decision on the Caselaw website. | Agini v Avissos Pty Ltd [2023] NSWSC 286 22 March 2023 – Dhanji J
In sum: There was a real question as to whether the Supreme Court had the power to stay an order of the Tribunal where no challenge had been made to the Tribunal’s decision and an appeal to the Appeal Panel had been settled. As there were no further proceedings in relation to the defendant’s process of obtaining possession of the property, there was no process to which a stay could attach. The Court did not have jurisdiction to grant the orders sought.
Catchwords: LANDLORD AND TENANT – residential tenancy – stay application – warrant for possession issued by NCAT– no jurisdiction – summons dismissed
Read the decision on the Caselaw website. | Singh v Carroll & Ors [2023] NSWSC 245 23 March 2023 – McNaughton J
In sum: The plaintiff was a bankrupt and as a result of the combined effect of ss 5, 58 and 116(1)(b) of the Bankruptcy Act 1966 (Cth) (BA), had no standing to defend proceedings or bring an appeal against proceedings regarding termination and possession orders. Claims regarding the rental property were consequently summarily dismissed as an abuse of process. The remaining claims were struck out as no reasonable cause of action was disclosed in the pleadings.
Facts: The plaintiff was a tenant in a property owned by the fourth and fifth defendants (the landlords). On 9 November 2021, NCAT made orders terminating the tenancy and giving possession to the landlords. The plaintiff and his co-tenant (not a party to the Supreme Court proceedings) appealed to the Appeal Panel. On 16 May 2022, the Appeal Panel allowed an appeal as a result of an inadvertent error based on the plaintiff’s undisclosed bankruptcy and remitted the proceedings, joining the respondent’s trustee in bankruptcy as a party. On 22 March 2022, the plaintiff commenced proceedings in the Supreme Court against six defendants (the landlords, the landlords’ solicitors (Complete Legal) and a Deputy Registrar of NCAT) claiming civil conspiracy, collateral abuse of process, constructive fraud and unlawful interference in a contractual right to possession (the Property Claims), intentional infliction of emotional distress and misfeasance in public office. The first to third defendants and the sixth defendant filed Notices of Motion seeking to summarily dismiss and/or strike out the Statement of Claim.
Held (summarily dismissing the Statement of Claim so far as it concerned the Property Claims and striking out the balance of the Statement of Claim):
(i) Complete Legal argued that ss 5, 58 and 116(1)(b) of the BA had the combined effect that the power to commence proceedings had been removed from the plaintiff and was in the hands of his trustee. The Court held that the plaintiff did not have standing to bring the claims because he was a bankrupt, and noted the well-established proposition in Elali (a bankrupt) v Mahrs [2013] NSWSC 1883 that a bankrupt tenant has no interest in proceedings brought against him for termination and possession, and has no standing to be heard in defence of or bring an appeal from such proceedings. The Court summarily dismissed the Property Claims under r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) as incompetent and an abuse of process as the plaintiff had no standing to bring the claims. the Court noted that the emotional distress and public misfeasance claims were likely subsumed within the Property Claims (in that they all allegedly arose from the dealings with the rental property, citing Samootin v Shea [2010] NSWCA 371) and could be disposed of in the same way, but also addressed those claims individually (at [35], [38], [41]-[42], [52]-[53], [54]).
(ii) Complete Legal submitted that “intentional infliction of emotional distress” is not a cause of action and the Deputy Registrar submitted that the Statement of Claim as pleaded did not establish loss or harm or set out facts in support of such a contention. The Court agreed that the Statement of Claim did not disclose a reasonable cause of action and struck out the Emotional Distress Claims under r 14.28(1)(b) of the UCPR.
(iii) Regarding the allegation of misfeasance in public office by the Deputy Registrar, the Court agreed with the Deputy Registrar that the plaintiff had failed to plead a recognised psychiatric injury and disposed with the issue on that basis (r 14.28(1)(b) of the UCPR). In obiter, the Court noted that the argument of judicial immunity appeared on its face to be “a compelling answer to the claim” (at [67]-[70]).
Read the decision on the Caselaw website. | Mills v Martin-Brower Australia Pty Ltd [2023] NSWSC 253 23 March 2023 – Adamson JA
In sum: There was no apprehension of bias where the Commission Member of the Personal Injury Commission heard a liability dispute between the parties and subsequently sat on a Medical Appeal Panel regarding medical assessment. A fair-minded lay observer would be able to appreciate the distinction between the two tasks.
Facts: The plaintiff (claimant) was injured in the course of his employment with the first defendant. The claimant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (NSW) for lump sum compensation in respect of an injury to his hip and an alleged injury to his back. The employer denied liability in respect of the claimant’s back and disputed the amount claimed. The dispute was referred to the Commissioner and was heard by the Commission, constituted by Member Sweeny, on 21 March 2022. The Commission issued a determination which included a remittal to the President for referral to a Medical Assessor for assessment of the combined Percentage Whole Person Impairment arising from the injury, which was assessed to be 18%. The claimant appealed against the medical assessment to the Medical Appeal Panel. The parties were not notified of the constitution of the Medical Appeal Panel prior to its decision (made “on the papers”) and Member Sweeny was the Member of the Commission that sat on the Medical Appeal Panel. The claimant sought judicial review in the Supreme Court, challenging the decision of the Medical Appeal Panel on the grounds of apprehension of bias and procedural fairness.
Held (dismissing the summons):
(i) The claimant alleged that Member Sweeny had already determined a matter in respect of the claimant and ought to have recused himself. The Court acknowledged it was well established that the principles relating to bias apply to administrative decision-makers; the test is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The Court held that a “fair-minded lay observer” would appreciate that whilst Member Sweeney had expressed a tentative view about the existence of an injury to the claimant’s back, Member Sweeney had refrained from making such a finding, on the basis that it was not required to be made. Further, the observer would appreciate that the issues addressed by Member Sweeney when sitting alone as the Commission determining the liability dispute were different to what arose before the Medical Appeal Panel regarding the medical assessment. The Court was not persuaded as to apprehension of bias (at [31], [34], [35]).
(ii) The claimant also argued that there was a denial of procedural fairness in not being given the opportunity to object to the constitution of the Medical Appeal Panel before the decision was made. Given the Court’s finding as to apprehension of bias, the Court held that any recusal application on that ground would have been bound to fail and thus there was no denial of procedural fairness in not informing the parties of the constitution of the Medical Appeal Panel prior to its decision. The claimant was required to demonstrate that the result would have been different if the alleged practical injustice had not occurred, but in any event would be unable to do so (at [36]).
Read the decision on the Caselaw website. | Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 24 March 2023 – Chen J
In sum: An NCAT Appeal Panel misconstrued and mischaracterised the Tribunal’s decision and findings of fact, and so erred in its decision to overturn the Tribunal below. The Tribunal had not engaged in merits review – rather, the Tribunal had assessed whether the valuation complied with the requirements of s 31(1)(a) of the Retail Leases Act 1994 (NSW) (RLA). Further, s 31(1)(e) of the RLA was relevant to the interpretation of s 31(1)(a) in imposing an obligation on the valuer to provide detailed reasons. Whether a valuer’s reasons comply with the requirements of s 31(1)(e) of the RLA is distinct from whether the valuer’s decision is “correct”.
Facts: The plaintiff (landlord) entered a retail lease with the defendant (tenant), a term of which was that the lease was subject to a rent review every four years, with rent to be agreed by the parties or determined by a valuer. In 2020, the parties were unable to agree on the rent. The tenant applied to the Office of the Small Business Commissioner for the appointment of a specialist retail valuer, and Mr Hermiz was appointed to conduct the market rent review for the premises. On 10 February 2021, Mr Hermiz issued a final valuation report dated 11 December 2020. The landlord commenced proceedings in the Tribunal, arguing in the alternative that the valuation did not comply with the RLA; the tenant also commenced proceedings seeking a refund of licence fees. The Tribunal found that the valuation was not valid or binding and required the parties to remit the determination to Mr Hermiz. Both parties appealed. The Appeal Panel found that the valuation was valid and that the Tribunal’s approach was “tantamount to a merits review”; it also found that the tenant was entitled to a refund of the licence fee. The landlord appealed.
Held (granting leave to appeal in part, allowing the appeal):
(i) The landlord argued that the Appeal Panel erred in law by mischaracterising the Tribunal’s reasoning as “tantamount to a merits review” and had misapprehended the distinction between merits review and the requirement to comply with the RLA. The Court held that the Tribunal had directed its analysis to determining whether there had been compliance with the provisions of s 31(1)(a) of the RLA. The Tribunal’s scrutiny of the valuer’s fact-finding to assess whether the valuation complied with the terms of the provision was a necessary task, but conceptually distinct from reviewing the correctness of the valuation. The Appeal Panel erred in concluding that the Tribunal’s findings of fact established that the valuer had regard to the factors in s 31(1)(a) of the RLA. The Appeal Panel misconstrued and misunderstood the Tribunal’s reasons, which led to the Appeal Panel overturning the Tribunal’s decision (at [61], [67], [69]-[70], [74]).
(ii) The Court found that the Appeal Panel erred in its construction of s 31(1)(a) of the RLA in light of sub-s 31(1)(e), which imposes an obligation on the valuer to explain or justify the opinion and sets the standard for those reasons as “in writing” and “detailed”. The Court emphasised that an assessment of whether legally adequate reasons (in compliance with the RLA) have been provided is a distinct exercise not concerned with a review of the correctness of the final decision of the valuer. It was not open to the Appeal Panel to confine its approach to the construction of s 31(1)(a) of the RLA merely to its terms – s 31(1)(e) was relevant to the interpretative inquiry (at [86], [88], [95]).
(iii) Whilst the ground relating to the licence fee raised a mixed question of fact and law, the Court decided that it should not be the subject of a grant of leave. The amount alone ($7,571.17) justified a refusal of leave – indeed, the plaintiff had argued the same point before the Appeal Panel (at [171]-[172]).
(iv) The Court remitted to the Appeal Panel the issues of costs of the NCAT proceedings and whether Mr Hermiz or a different valuer should be appointed for a new valuation. The first issue was remitted as a number of other issues were determined at first instance and before the Appeal Panel that were not the subject of the appeal to the Supreme Court. In the absence of submissions from the parties and allowing for other subtleties or considerations as to how the costs discretion should be exercised, the issue was remitted. The second issue was remitted as the Court was constrained by the fact that the Appeal Panel had not determined the matter and so the Court had no jurisdiction to deal with the matter – an appeal to the Court is confined to the decision of the Appeal Panel (at [177]-[178], [180]-[181]).
Read the decision on the Caselaw website. | Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280 24 March 2023 – Beech-Jones CJ at CL
In sum: The various proceedings against NCAT Members and Registrars were summarily dismissed on the basis that judicial immunity (or derivative immunity with respect to the Registrars) was a complete answer to the claims made against them in performance of their functions as Members and Registrars. Two proceedings were also summarily dismissed as an abuse of process, as they had been made futile by subsequent Appeal Panel determinations. The Court imposed interim orders restraining the Plaintiff from commencing further proceedings in the Supreme Court without leave, and made a recommendation to the Attorney General that he consider whether to make an application for a vexatious proceedings order against the plaintiff.
Facts: The Tribunal made orders terminating a residential tenancy due to the tenants’ failure to pay rent, for possession to be given as at the date of termination and for the tenants to pay a daily occupation fee until vacant possession was given. Mr Singh was the father of the third plaintiff and married to the second plaintiff. Mr Singh was removed from the proceedings on the basis that he was not a tenant. The tenants then lodged an appeal, which was dismissed. Subsequently, the order for possession was suspended subject to the payment of rental arrears and the occupation fee. No rent had been paid since March 2022. Arising from the Tribunal proceedings, Mr Singh (who is a bankrupt) had commenced numerous proceedings in the Supreme Court, five of which were the subject of notices of motion seeking, amongst other relief, summary dismissal.
Held (summarily dismissing the appeals or striking out the statements of claim):
(i) Two proceedings were commenced while appeals were pending before the Appeal Panel or between the Tribunal at first instance and the proceedings in the Appeal Panel. It was submitted that Mr Singh sought to subvert or improperly undermine the functions of the Tribunal and Appeal Panel in determining the parties’ rights and obligations under the Residential Tenancies Act 2010 (NSW). The Court found that these proceedings were an abuse of process. The proceedings were futile as the Appeal Panel had, since the commencement of these proceedings, ruled on the appeal. There would be no utility in the Court conducting judicial review of the Tribunal decision because the operative position had been declared by the Appeal Panel (at [24], [28], [29]-[30]).
(ii) The third proceeding named seven defendants, including the Tribunal Member at first instance and a Registrar. The Court held that the pleadings regarding the Member and Registrar were clearly embarrassing; they were hopeless in that they did not plead the necessary material facts to establish the cases of action. Further, cl 4 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) was a complete answer to the claim brought against the Member, as it provides that NCAT Members exercising their functions as Members, have the same judicial immunity as a Judge of the Supreme Court. The conduct of the Member as pleaded concerned performance of the functions and powers of his office as a Member of NCAT. This had been brought to Mr Singh’s attention as long ago as June 2022 in the judgment of Garling J in Singh v Charles [2022] NSWSC 743, but had in any event become a “repeated theme” of Mr Singh’s litigation. Similarly, the principle of derivative immunity (citing Wentworth v Wentworth [1999] NSWSC 317 at [43]-[44]) applied to the proceedings against the Registrar in performance of her functions as Registrar (at [34], [41], [42], [43], [46]).
(iii) The fourth proceeding named thirteen defendants, including the President of NCAT, three NCAT Members, the Principal Registrar and the State of NSW. The claim against the NCAT Members and Principal Registrar were dismissed on the basis of judicial immunity and derivative immunity. The President, under ss 44A and 44B of the Judicial Officers Act 1986 (NSW), has the same immunity in exercising functions as President and that extends to the performance of her “ministerial duties”. The fifth proceeding named twenty defendants, including seven NCAT Members and a Registrar. They were similarly dismissed as against the Members and Registrar on the basis of judicial immunity and derivative immunity (at [61], [75]).
(iv) The Court noted the vexatious qualities of the multitude of cases commenced by Mr Singh in the last 18 months, such that the Court considered whether it would commence the process of making a vexatious proceedings order of its own motion under s 8(4) of the Vexatious Proceedings Act 2008 (NSW). Ultimately, the Court made an interlocutory order precluding Mr Singh from commencing proceedings in the Supreme Court without obtaining leave and made a recommendation to the Attorney General to consider making an application for a vexatious proceeding order. Further, the interests of justice required the Court to order that Mr Singh not be permitted to conduct proceedings (including by appearing) on behalf of his wife and daughter (at [89], [90], [95], [96]).
Read the decision on the Caselaw website. | Colin Davidson v Seachange Living NSW Pty Ltd [2023] NSWSC 292 29 March 2023 – Harrison AsJ
In sum: Pursuant to s 73(4) of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLCA), once the Tribunal found that the increase in site fees was lower than what was required to cover the increase in outgoing and operating expenses of the community, the Tribunal was precluded from making an order to decrease the proposed increase in site fees.
Facts: The plaintiff and other Appeal Panel appellants (home owners) were “home owners” within the meaning of the RLLCA in a residential land lease community operated by the defendant (operator). The home owners had “site agreements” as defined by the RRLCA with the operator, which provided for an increase of site fees by notice. In March 2021, the operator issued a notice to the home owners increasing the site fees by $23.32 per fortnight. The home owners challenged this increase as “excessive” in the Tribunal. The Tribunal found that it did not have jurisdiction to determine the application, or in the alternative, the home owners had not satisfied their onus of proof to establish that the increase was excessive. On appeal, the Appeal Panel held that the Tribunal had erred in law in finding that it did not have jurisdiction, but found that the Tribunal’s reasons were adequate and any challenge that the Tribunal erred regarding the onus of proof required leave to appeal. The home owners were unable to establish they had suffered a substantial miscarriage of justice and so the Appeal Panel’s discretion to give leave was not enlivened. The home owners appealed to the Supreme Court.
Held (refusing leave to appeal):
(i) The Tribunal Member at first instance had made a finding that the actual fee increase was less than the actual increase in operating costs and other expenses of the Park. Under s 73(4) of the RLLCA, the consequence of such a finding when established to the Tribunal’s satisfaction is that the Tribunal is prohibited from making an order that the increases are excessive. Such a result occurs regardless of who bore the onus of proof. However, the Court expressed a tentative view, in line with the Appeal Panel in Glennaker Pty Ltd t/as Homestead Park v Bennett [2020] NSWCATAP 12, that it would be a misconception to find that the home owners bore the onus of proof. Such a view drew on various elements set out in s 74 of the RLLCA which required information only known to the operator or the operator’s explanation. Further, NCAT (to some extent) exercises an inquisitorial role in considering the factors in s 74(1)(a)-(h) of the RLLCA (at [42], [127], [128], [129]).
Read the decision on the Caselaw website. | El Ali v Beaini Enterprises Pty Ltd [2023] NSWSC 329 5 April 2023 – Weinstein J
In sum: In circumstances where the first plaintiff was not a party to the residential tenancy agreement, ss 13 and 77 of the Residential Tenancies Act 2010 (NSW) (RTA) could not establish the first plaintiff as a tenant. As a result, the first plaintiff had no right to be heard in proceedings before NCAT regarding a Notice of Termination. In any event, the first plaintiff was heard in full in his subsequent application to be joined to the earlier proceedings, even if that application was dismissed. There was no failure to afford procedural fairness.
Facts: The second plaintiff (Yates) entered into a one-year residential tenancy agreement with the first defendant (Beaini) on 22 May 2019. The first plaintiff (Alan) was the person in possession. No further lease was entered into but rent continued to be paid to Beaini until the tenant ceased paying rent and significant arrears accrued. A notice of termination was issued on 30 September 2021 and served on Yates and the brother of the first plaintiff (Nathan). The matter was listed in the Tribunal for hearing (Possession Proceeding), where Nathan was removed as a respondent as he was not listed as a tenant in the agreement. Counsel for Yates confirmed that it was the appropriate tenant. On 8 December 2021, the Tribunal made orders terminating the tenancy in accordance with s 87 of the RTA and for payment of rental arrears. On 10 December 2021, Alan lodged an application for an order pursuant to s 77 of the RTA recognising him as a tenant for the purpose of the Possession Proceeding (Joinder Proceeding). On 14 January 2021, the Tribunal dismissed the Joinder Proceeding. On 18 February 2022, Alan filed an Amended Notice of Appeal challenging the proceedings. The Appeal Panel dismissed the appeal on 15 July 2022. Alan appealed to the Supreme Court.
Held (refusing leave to appeal):
(i) Alan sought to argue that he was the proper tenant for the premises by virtue of his occupancy, pursuant to s 13 of the RTA. The Court held that this provision did not assist – Beaini granted the right of occupation to a corporation (Yates) and no evidence established such an agreement between Beaini and Alan. Alan further submitted that he should have been joined to the Possession Proceedings under s 77(2) of the RTA. However, there was no dispute that Alan did not make an application until the Joinder Proceedings. As a result, s 77 of the RTA could not have been engaged. In any event, the Court held that the discretion under s 77(1) of the RTA could not be exercised because neither of the two subsections in s 77(2) had been satisfied. Alan was never a tenant within the meaning of the word and so was never a necessary or proper party. Thus, there was no denial of procedural fairness by not being joined to the Possession Proceeding: Alan was never a tenant and had no right to be heard (at [55]-[56], [57]-[59], [62], [66]).
(ii) Regarding the Joinder Proceeding, Alan was heard before the Tribunal on several matters, including the application under s 77 of the RTA and an order staying or delaying the operation of the warrant for possession. Whilst the Member’s reasons were brief, it was clear that Alan was given a full opportunity to be heard. Alan submitted that the Appeal Panel perceived the wrong issue to be before it, and it should have asked whether Alan was heard in the Possession Proceeding. However, as above, Alan was never a tenant and had no right to be heard (at [70], [72]).
Read the decision on the Caselaw website. | Mullally v Lucien [2023] NSWSC 373 17 April 2023 – Yehia J
In sum: The Supreme Court refused leave to appeal an Appeal Panel decision which had dismissed an appeal from a costs decision of the Tribunal. The Court found that the Appeal Panel had properly applied the principles in House v The King (1936) 55 CLR 499 at 504-505 to the Tribunal’s discretionary costs decision in adopting the Tribunal’s finding that the respondent had been successful in his claim. The Court found that no error on a question of law was raised by the appeal to engage its appellate jurisdiction.
Catchwords: APPEALS – Leave to appeal – From the Appeal Panel of the New South Wales Civil and Administrative Tribunal – Where applicant alleged the Appeal Panel erred in adopting the finding that the respondent was “successful” – Whether it was open to find that the respondent was entirely or “somewhat” successful – Leave to appeal refused – Appeal dismissed
Read the decision on the Caselaw website. | Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 21 April 2023 – Griffiths AJ
In sum: In proceedings in NCAT, whether a lease is a retail lease within the meaning of the Retail Leases Act 1994 (NSW) (RLA) is a jurisdictional fact. Despite any evidence of the parties’ intention at the time of execution of the lease, the relevant date for determining the existence of the jurisdictional fact is when the claim is lodged with NCAT. In determining the existence of the jurisdictional fact, consideration is to be given to the actual use of the premises in the particular circumstances.
Facts: On 19 February 2022, the respondent (lessee) applied to NCAT claiming the applicant (lessor) had improperly terminated the lease and re-entered the premises, and seeking interim relief against forfeiture and repossession under s 72(4) of the RLA. The lessor challenged NCAT’s jurisdiction, claiming the lease was not a retail lease within the meaning of the RLA. On 4 May 2022, a hearing took place regarding NCAT’s jurisdiction. On 29 June 2022, NCAT dismissed the lessor’s challenge to its jurisdiction. The lessor appealed the decision on jurisdiction, which was dismissed by the Appeal Panel on 7 October 2022. The lessor sought leave to appeal to the Supreme Court the Appeal Panel’s decision on jurisdiction.
Held (granting leave to appeal, refusing the appeal):
(i) The Court was satisfied it was appropriate to grant leave to appeal, notwithstanding the appealed decision was an interlocutory one. It noted the need to consider whether the grant of leave would unduly disrupt the orderly despatch of NCAT’s business and identified the unusual circumstances that NCAT had since conducted a hearing regarding the substantive dispute and its decision was reserved. However, it was significant that the interlocutory decision related to a threshold issue and raised an issue of principle concerning NCAT’s authority to determine the dispute as between the parties. It was in the interests of the finality of litigation that the jurisdictional issue be determined (at [40], [39]).
(ii) Despite evidence at the time of the execution of the lease that the parties had proceeded on the basis that the lease was a retail shop lease for the purposes of the RLA, such evidence was not determinative. The relevant date for determining the existence of a jurisdictional fact (and whether or not there was a retail shop lease is a jurisdictional fact), is the date the application was lodged with NCAT (at [42]-[45], [48], [52]).
(iii) The Court acknowledged that there was some tension, at least superficially, in the relevant authorities as to whether the question of whether the lease was a retail shop lease was to be determined solely by reference to the permitted uses in the lease, or if it was necessary to determine what the premises were actually being used for as at the relevant date. Ultimately, neither party argued that the course taken by the Appeal Panel was incorrect. The Appeal Panel applied the reasoning in Diamond Certification Laboratories Pty Ltd v The Trust Company Ltd [2015] NSWCATCD 122, which did not find the permitted use identified in the lease to be pivotal or determinative. Indeed, the “critical question” (per Diamond at [37], emphasis added by the Court) was whether “the business actually conducted is that of a shop, as defined in s 3 of the Act” (at [53], [66], [65], [62]-[63]).
(iv) There was no substance to the lessor’s complaint of an absence of evidence to support the findings of fact made at first instance. The Appeal Panel had made clear that the contents of the statements of the lessee’s CEO, who was not cross-examined, provided a sufficient basis for the findings of fact. Whilst the lessee carried the onus of establishing NCAT had jurisdiction, it was open to the Tribunal to act on the CEO’s evidence. The lessor’s “no evidence” complaints could not be established (at [69], [77], [71], [79], [87]).
Read the decision on the Caselaw website. | Singh v Harrowell & Ors [2023] NSWSC 420 24 April 2023 – Kunc J
In sum: The Court exercised its extraordinary power to issue a permanent stay of the proceedings given the hopeless nature of the allegations and the vexatious and oppressive effect of any continuation of the proceedings. The plaintiff’s claims were unsustainable in circumstances where he was a bankrupt, the pleadings were inadequate and/or sought to relitigate issues already determined in previous proceedings and no action was maintainable against the first to eighth defendants who all benefitted from judicial immunity. To protect the Court’s processes, the Court of its own motion ordered that the plaintiff could take no further steps in the proceedings, including in relation to an appeal, without leave. The Court also made a recommendation to the Attorney General that he consider bringing an application for a vexatious proceedings order against the plaintiff.
Catchwords: CIVIL PROCEDURE – Pleadings – Striking out or permanent stay – Abuse of process – Vexatious proceedings – No issues of principle
Read the decision on the Caselaw website. | NSW Civil and Administrative Tribunal | Chief Health Officer, NSW Health v FRC (application for confirmation of public health order) [2023] NSWCATAD 75 27 March 2023 – Cole DCJ
In sum: The Tribunal exercised its power under s 64 of the Public Health Act 2010 (NSW) (PHA) to vary and subsequently confirm a public health order, the subject of which was FRC, a man suffering from Human Immunodeficiency Virus (HIV). The grounds that justified the Acting Chief Health Officer’s making of the order included FRC’s refusal to take his antiretroviral medication, evidence that FRC engaged in condomless sexual intercourse and/or failed to inform his sexual partners of his HIV status and evidence that FRC did not believe he had HIV and so would not take reasonable precautions against the spread of HIV. The Tribunal held that its task under s 64 of the PHA has no counterpart in any other legislation. It is not an administrative review, but an inquiry into the circumstances surrounding the making of a public health order. The primary purpose of this inquiry is to ensure that the procedural and substantive requirements and pre-requisites necessary for the making of the public health order under the PHA have been met and that no irrelevant considerations have been taken into account. The Tribunal considered the formal requirements of the PHA and the matters which the authorised medical practitioner (AMP) must be satisfied, and held that the evidence established the grounds relied on by the AMP. The Tribunal varied one requirement of the public health order on the basis that compliance would not be possible, but otherwise confirmed the balance of the public health order as nothing in the circumstances of the making of the public health order which was in evidence before the Tribunal suggested the balance should not be confirmed.
Read the decision on the Caselaw website. | Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76 29 March 2023 – Cole DCJ, T Simon, Dr B McPhee
In sum: The Chief Health Officer applied to the Tribunal for variation and continuation of the public health order (which was varied and confirmed in the above case) under s 65 of the PHA, as well as a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). Considering the material before it, the Tribunal extended the public health order for six months, the maximum period allowed under s 65(4)(a) of the PHA. FRC’s historical resistance to the use of condoms, his periodic refusal to accept his HIV diagnosis, or that HIV exists, and his apparent indifference to the possible consequences for his sexual partners, meant that it was important FRC continue to take antiretroviral medication on an ongoing basis. There was evidence that FRC only began to take antiretroviral medication after the public health order was issued. The Tribunal found that it was evident from the material before it that FRC would continue to be a risk to public health should he stop complying with the public health order. The Tribunal also made a non-publication order in light of the potential for physical and psychological harm that could come to FRC and the public interest. The physical and psychological harm that could result from publication was obvious where the application necessarily involved the consideration of evidence of FRC’s medical history, sexual behaviour and preferences, mental health and personality characteristics. Further, it is in the public interest for a person with symptoms of an infectious disease to seek medical advice and treatment early, and the risk of having personal medical and possibly sexual history published in a Tribunal decision may deter infected people from seeking medical advice and treatment.
Read the decision on the Caselaw website. | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin 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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