| | | | | | | NCAT Appeal Decisions Digest July Decisions
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| | The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
Under the Civil and Administrative Tribunal Act 2013, parties have a right to appeal to the Internal Appeal Panel from any decision made by the Tribunal in proceedings for a general decision or an administrative review decision. Detailed information about appeals is available on the NCAT website.
The following NCAT Appeal Panel decisions were handed down during the month of July 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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| The following case summaries are of significant decisions handed down by the NCAT Appeal Panel during July 2017.
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| Chaw v Jenkinson [2017] NSWCATAP 150
Consumer and Commercial Division - General
Judgment of: M Schyvens, Deputy President, P Durack SC, Senior Member Summary: The Appeal Panel considered the Tribunal’s power to award costs under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW), in circumstances where an unsuccessful party had rejected an offer to settle for the full amount of their claim.
Section 60(2) provides that the Tribunal may award costs only if it is satisfied that there are “special circumstances warranting an award of costs”. In the present case, the Appeal Panel held (at [7]) that the following consideration, as set out in s 60(3), were relevant:
“….
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
….
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
….
(g) any other matter that the Tribunal considers relevant.”
The Appeal Panel observed (at [9]) that the following points, drawn from the case authorities, were pertinent:
“(1) The unreasonable refusal of an offer of compromise may constitute “special circumstances” as required by s 60 (2) of the Act: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [20]. Depending on the circumstances, it seems to us that such a situation might satisfy the considerations in either or both of (b) and (g) of s 60 (3).
(2) An imprudent refusal of an offer of compromise is one circumstance that has been found to warrant an order for costs to be paid on an indemnity basis: Colgate Palmolive Company v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225 per Sheppard J at [24(5)].
(3) The policy objectives behind the power to award indemnity costs include:
- To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff’s real claim which can be placed before its opponent without risk that its ‘bottom line’ will be revealed to the court;
- To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and
- To indemnify the party who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the party which has rejected the compromise. In such circumstances that party should ordinarily bear the costs of litigation.
See: Maitland Hospital v Fisher (No.2) (1992) 27 NSWLR 721 at 724.
(4) Generally, there is reluctance to order indemnity costs against an unrepresented litigant due to limitations concerning knowledge of the law and practices and the need for objectivity: eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [43].
(5) As a general rule, if an offer of compromise (in the same or different terms) is not renewed following the commencement of an appeal a Court will not make a special costs order in respect of the costs of the appeal, and if a party wishes to rely upon an offer of compromise made at first instance in respect of the costs of the appeal, it should give clear notice to the other party of such intention: McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James (No 2) [2016] NSWCA 260 at [32] to [37].”
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| Walsh v Sandeberg [2017] NSWCATAP 152
Consumer and Commercial Division - Home Building
Judgment of: J Harris SC, Senior Member; D Goldstein, Senior Member Summary: The Appeal Panel declined to award indemnity costs to the successful parties (the respondents), on the basis that that the appellant’s refusal to accept a Calderbank offer had not been unreasonable (at [25]).
As a starting point, the Appeal Panel held (at [12]) that r 38 of Civil and Administrative Rules 2014 applied to the first instance proceedings, on the basis that those proceedings had been allocated to the Commercial and Consumer Division and the amount claimed had been more than $30,000. In the light of r 38A, the Appeal Panel held (at [14]) that:
“[T]he starting position should be that [the respondents] are entitled to recover their costs of, and incidental to, the Appeal proceedings in circumstances where there has been no submission that there is disentitling conduct on their part to cause the discretion to award costs in their favour not to be exercised.”
After observing that the appellant would have received a discount of nearly $11,500 if he had accepted the respondents’ offer (at [18]), the Appeal Panel held (at [19]) that the “making of a ‘Calderbank Offer’ that is bettered by the offeror does not in itself entitle the offeror to an order for indemnity costs.”
Following Jones v Bradley (No. 2) [2003] NSWCA 258 at [40], the Appeal Panel held (at [19], [21] and [23]) that there are two questions relevant to a claim for indemnity costs, where a Calderbank offer has been made, namely:
1) Was there a genuine offer of compromise? 2) If so, was it unreasonable for the offeree not to accept it?
In relation to the “unreasonable refusal” question, the Appeal Panel provided (at [20]) a non-exhaustive list of factors, drawn from Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 at [12], namely:
“‘(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree's prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.’”
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| Hong v Wentworth Management Services (NSW) Pty Ltd [2017] NSWCATAP 154
Consumer and Commercial Division - General
Judgment of: C Fougere, Principal Member, R Titterton, Senior MemberSummary: The Appeal Panel dismissed an appeal from the Consumer and Commercial Division, despite finding that the Tribunal below had committed an error of law, on the basis that it would be futile to remit the matter for rehearing (at [5]).
Although the Tribunal had failed to give adequate reasons for its decision (at [40]), the Appeal Panel observed (at [42]) that it is entitled to “make such orders as it considers appropriate in light of its decision under the appeal” under s 81 of the Civil and Administrative Tribunal Act 2013 (NSW).
In the present case, the Appeal Panel, following its previous decision in McClenahan v Owners Corporation SP69904 [2017] NSWCATAP 112, held (at [46]) that it would be futile to remit the matter as the appellant had failed to establish loss in relation to the breach of contract claim before the Tribunal.
In dismissing the appeal, the Appeal Panel also relied (at [47]) on the statement of McColl J (Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [67], namely:
“Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported).
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| Whipps v Caravan & RV Central Pty Ltd [2017] NSWCATAP 163
Consumer and Commercial Division - Motor Vehicle
Judgment of: D Cowdroy QC, ADJC, Principal Member; A Britton, Principal Member Summary: The Appeal Panel allowed an appeal from the Consumer and Commercial Division, holding that the Tribunal below had failed to give proper and genuine consideration to an issue before it.
In doing so, the Appeal Panel, following Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]-[25], held (at [27]) that a failure to consider a “substantial, clearly articulated argument relying upon established facts” may amount to either a denial of procedural fairness or a constructive failure to exercise jurisdiction.
In relation to the denial of procedural fairness, the Appeal Panel observed that there are limits to the principles described in Dranichnikov (at [28]) and that the concern in this area of law is to avoid a “practical injustice” to a party (at [29]), holding that:
“[28] However, as Basten JA pointed out in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22] there are important limits to the principles described in Dranichnikov:
[N]either Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35].
[29] In addressing whether or not there has been a failure to respond to a substantial argument made a party, the concern of the law in this area is to avoid “practical injustice”: Rodger v De Gelder [2015] NSWCA 2011 at [93]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [95].”
In relation to the constructive failure to exercise jurisdiction, the Appeal Panel considered the dangers of failing to give reasons for rejecting expert testimony (at [30]) and expressing a preference for an expert’s evidence without engaging with the parties’ arguments (at [31]), holding that:
“In Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, the Court of Appeal was highly critical of a judge who failed to give reasons for rejecting a well-qualified expert’s testimony. Sheller JA wrote at [79]:
His Honour gave no reason for saying that this was a significant defect in Mr Whittaker’s evidence nor was it ever suggested to Mr Whittaker that it was. For a judge to find that there is a significant defect in the evidence of a witness with the qualifications, history and experience in design and design failure analysis, particularly in the field of design and detailing of plastic components for manufacture, the very subject of this report, without troubling to give any sensible reason for doing so is, to put it mildly, wrong. Such a conclusion cannot possibly be allowed to stand.
In Moylan v Nutrasweet [2000] NSWCA 337, the Court of Appeal was critical of a judge who simply expressed a preference for one expert’s evidence without engaging with the arguments made by the parties concerning that evidence. Sheller JA (at [63]) discussed the problem by reference to a decision of the English Court of Appeal in Flannery v Halifax Estate Agencies Limited [1999] EWCA Civ 811; [2000] 1 WLR 377. At [66]-[67] he said:
Henry LJ referred [in Flannery] to Eckersley v Binnie (1988) 18 Con LR 1 at 77-8 where Bingham LJ said that: “a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons”. In Flannery at 382 Henry LJ said:
“where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence…”
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| | | Keyword summaries for all NCAT Appeal Panel decisions made during July 2017.
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| | Semaan v McIlroy; McIlroy v Semaan [2017] NSWCATAP 146
Consumer and Commercial Division - Residential Tenancies
Judgment of: M Craig QC, Principal Member; S Thode, Senior Member Catchwords: RESIDENTIAL TENANCY – rental bond – landlord’s failure to adduce evidence of post tenancy cleaning cost – no entitlement to claim against the rental bond – use of electricity supplied to rental premises by landlord – no request for refund – claim by tenant upheld – entitlement to compensation – overpayment of rent – no written notice to tenant of rental increase – tenant entitled to refund as money had and received – Residential Tenancies Act 2010 ss 38, 41, 43, 47 and 187. |
| Dellagiacoma v Dragh [2017] NSWCATAP 147
Consumer and Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member; A Boxall, Senior Member Catchwords: Civil and Administrative Tribunal Act -Renewal of proceedings under cl8
Home Building Act- application to amend the claim to seek compensation for defective and incomplete building work following the making of a consent work order.
Res judicata and issue estoppel - effect of decision in earlier proceedings to dismiss application to amend upon a subsequent application to renew proceedings for non-compliance with consent orders, issues necessarily resolved by earlier proceedings, effect of dismissal of application to amend on operation of consent work order previously made in earlier proceedings. |
| Durie v Wollongong City Council [2017] NSWCATAP 148
Administrative and Equal Opportunity Division - Government Information Privacy Act (GIPA)
Judgment of: Hennessy LCM, Deputy President; G Sarginson, Senior Member Catchwords: GOVERNMENT INFORMATION – where applicant applied under the Government Information (Public Access) Act 2009 (NSW) for personal information – where Wollongong City Council refused to provide that information – where Tribunal affirmed Council’s decision – whether Tribunal made an error of law by not giving sufficient weight to considerations in favour of disclosure – whether Tribunal made an error of law by making a finding of fact without evidence – whether leave should be given to the applicant to appeal on grounds other than questions of law. |
| NSW Education Standards Authority v DMM [2017] NSWCATAP 149
Administrative and Equal Opportunity Division - Administrative Review
Judgment of: M Harrowell, Principal Member; R Hamilton SC, Senior Member Catchwords: Education Act- Obligations of parent and State. Registration for Home Schooling- meaning of child, eligibility for registration, point in time when child must be under 18. |
| Wallace v Price [2017] NSWCATAP 151
Consumer and Commercial Division - Residential Tenancies
Judgment of: M Harrowell, Principal Member Catchwords: Reinstatement - explanation of failure to attend, exercise of discretion. |
| Smith v Origin Concepts Pty Ltd [2017] NSWCATAP 153
Consumer and Commercial Division - Motor Vehicles
Judgment of: I Bailey AM SC, Senior Member; D Goldstein, Senior Member Catchwords: Guarantee relating to supply of goods by description – undisclosed change of engine in vehicle sold to consumer. |
| | Rathchime Pty Ltd v Willatt [2017] NSWCATAP 156
Consumer and Commercial Division - Home Building
Judgment of: Dr J Renwick SC, Senior Member; D Goldstein, Senior Member Catchwords: Special circumstances under section 60 of the Civil and Administrative Tribunal Act 2013. |
| Staniland v Integrity New Homes Pty Ltd [2017] NSWCATAP 157
Consumer and Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member; R Titterton, Senior Member Catchwords: Costs- Legislation applicable to the award of costs in pending proceedings commenced prior to establishment day of the Civil and Administrative Tribunal. |
| Tannous v Leedon [2017] NSWCATAP 158
Consumer and Commercial Division - Home Building
Judgment of: M. Craig QC, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL – failure of appellant to appear at hearing below – no adequate explanation provided for that failure – expert evidence filed by the appellant considered by the Member in the decision under appeal – no error of law – leave to appeal required – no evidence provided to found the grant of leave;
APPEAL – simultaneous lodging of appeal with an application to set aside the decision of the Member – entitlement to pursue the set aside application doubted – Civil and Administrative Tribunal Regulation, cl 9. |
| Vorhauer v NSW Land and Housing Corporation [2017] NSWCATAP 159
Consumer and Commercial Division - Social Housing
Judgment of: M Harrowell, Principal Member; A Bell SC, Senior Member Catchwords: ADJOURNMENT – exercise of discretion – respondent an inpatient in hospital – no medical certificate.
APPEAL – termination order previously made – rent arrears – tenant evicted prior to hearing of appeal – just, quick, and cheap resolution of real issues in dispute – error in failing to adjourn – unpaid rent arrears and no evidence of capacity to pay rent or arrears – no utility in setting aside order and remitting for rehearing. |
| Fox v Vaucluse Bowling Club Ltd [2017] NSWCATAP 160
Consumer and Commercial Division - Residential Tenancies
Judgment of: R Hamilton SC – Senior Member; R Titterton – Senior Member Catchwords: APPEAL - Civil and Administrative Tribunal Act 2013 - Civil and Administrative Tribunal Rules 2014 - Residential Tenancies Act. |
| Bartush v Ale [2017] NSWCATAP 161
Consumer and Commercial Division - Residential Tenancies
Judgment of: L P Robberds QC, Senior Member; D A C Robertson, Senior Member Catchwords: APPEAL – Adequacy of reasons – Findings made without evidence PROCEDURE – Extension of time to commence application – s41 Civil and Administrative Tribunal Act – Relevant considerations. |
| Ferraro v Lambert [2017] NSWCATAP 162
Consumer and Commercial Division - Home Building
Judgment of: L P Robberds QC, Senior Member; T Simon, Senior Member Catchwords: Home-building – notice to renew proceedings – appellant inadvertently misled by orders of Tribunal – denial of procedural fairness – question of law – could not be concluded that denial of procedural fairness made no difference to the outcome. |
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