NCAT Appeal Panel Decisions Digest Issue 11 of 2023 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in November 2023:
Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305: An Appeal Panel refused to extend time to appeal and refused an appeal from two decisions of the Tribunal. The Appeal Panel held that the appellant’s purported question of law as to a failure to accord procedural fairness or constructive failure to exercise jurisdiction was not in fact a question of law; the appellant sought to complain about a factual error, rather than a legal error. The Tribunal had not failed to consider the relevant submission – the submission was not one which was necessary to engage with.
Inman v Commissioner of Police, NSW Police Force [2023] NSWCATAP 297: An Appeal Panel refused leave to appeal from the Tribunal’s summary dismissal of an administrative review application where insufficient material had been provided to the Appeal Panel to determine whether any error had been made. Further, the Appeal Panel held that the making of timetabling orders is not an internally appealable decision.
Sayadi v Karimbla Properties (No 35) Pty Ltd [2023] NSWCATAP 298: An Appeal Panel allowed an appeal from a decision of the Tribunal which had awarded nominal damages only, in the amount of $250. The Appeal Panel held that the Tribunal erred in its application of the relevant principles as to the assessment of damages where the damages are somewhat uncertain on the state of the evidence, which led to a substantial injustice that required correction. The Appeal Panel awarded damages in the amount of $11,767.10.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. In what circumstances will a complaint as to failure to accord natural justice or a constructive failure to exercise jurisdiction not amount to a question of law? |
Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305 Consumer and Commercial Division - Home Building G Blake AM SC, Senior Member; D Fairlie, Senior Member
In sum: The appellant sought to turn purported deficiencies in factual findings into deficiencies in the process of making findings or recordings reasons. Where an appeal is confined to a question of law, an allegation that the Tribunal failed to accord natural justice or constructively failed to exercise jurisdiction will not constitute a question of law where the appellant cannot make out legal error, as opposed to factual error.
Facts: The appellant (builder) agreed to carry out building work at a property owned by the respondents (Stockmans). A dispute arose as to alleged defective building works. The Stockmans commenced proceedings on 16 June 2023. At the Tribunal hearing, Mrs Stockman gave evidence that there was a contract between the Stockmans and the builder to carry out sub-floor work; a Mr Tarabay, a carpenter, gave evidence that he was engaged and paid by the builder to carry out that work. Mr Stockman did not give evidence. On 15 February 2023, the Tribunal made procedural orders in relation to a work order and costs. On 18 May 2023, the Tribunal made procedural orders in relation to a work order. On 26 May 2023, the Tribunal set out the terms of the work order. On 22 June 2023, the Tribunal made orders in relation to the costs of the proceedings. The builder appealed from the 26 May 2023 orders and the 22 June 2023 orders and sought an extension of time to appeal.
Held (dismissing the application to extend time; otherwise dismissing the appeal): (i) The parties disagreed as to the date from which time began to run to appeal the Tribunal’s decisions: the Stockmans contended it was from 15 February 2023 and the builder contended it was 26 May 2023. The Appeal Panel noted that the builder was not appealing against the 15 February 2023 orders. In any event, the 15 February 2023 orders (and decision) were not an ultimate or operative determination in the proceedings (relying on the principles set out in Cao v Lavish Construction and Developments Pty Ltd [2022] NSWCATAP 391 at [42]-[58]). As at the 15 February 2023 orders, no work order had been made and its precise terms had not been determined. It was only after the 26 May and 22 June 2023 orders that time began to run for any respective appeal. The Appeal Panel was satisfied that the builder’s delay was intentional and was not satisfied that the builder had provided a satisfactory explanation for the delay. In light of those findings, the Appeal Panel approached the question of the builder’s prospects of success on the basis that it must show that its case has more substantial merit than merely being fairly arguable (at [33], [52]-[60], [65]-[66], [70]).
(ii) The builder purported to appeal on a question of law as to whether the Tribunal failed to accord natural justice or constructively failed to exercise jurisdiction by failing to respond to the builder’s argument that an adverse inference should be drawn against the Stockmans in light of their unexplained failure to call Mr Stockman to give evidence. The Appeal Panel held that this was not a question of law, citing the principles set out in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6]-[34], [294]-[314], [400]-[410], and particularly the conclusion of Leeming JA at [411]-[412] (at [78]-[84]).
(iii) The Appeal Panel was not satisfied that the Tribunal had failed to consider the builder’s adverse inference submission – it provided detailed reasons for its finding that the Stockmans had contracted with the builder to carry out the sub-floor work. The Tribunal accepted Mrs Stockman’s evidence, which was confirmed by Mr Tarabay. In light of the evidence supporting the Tribunal’s finding, it was not necessary for it to engage with the adverse inference submission. As a result, the builder’s complaint was about a factual error rather than an error on a question of law – “faced with the task of falling within an appeal limited to questions of law, [it] sought to transmute deficiencies in factual findings into deficiencies in the process of making findings or recording reasons” (Alexandria Landfill at [412]) (at [84]-[89]). |
2. Does the making of timetabling orders constitute an “internally appealable decision” within ss 32(4) and 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)? |
Inman v Commissioner of Police, NSW Police Force [2023] NSWCATAP 297 Administrative and Equal Opportunity Division S Higgins, Senior Member; Dr J Lucy, Senior Member
In sum: The making of timetabling orders regarding the filing and service of material does not fall within the definition of a “decision” in s 5(1) of the NCAT Act. As a result, it is not an “internally appealable decision”. In the alternative, the legislature could not have intended to confer a right to appeal from timetabling orders.
Facts: The appellant (Ms Inman) applied to the Tribunal for administrative review of the respondent’s (Commissioner) refusal to grant her a firearms licence. The Commissioner raised that she would seek summary dismissal on the basis that Ms Inman had not first applied for internal review of the decision, as required by s 55(3) of the Administrative Decisions Review Act 1997 (NSW). On 24 January 2023, the Tribunal made timetabling orders for the filing and service of material relating to the proposed summary dismissal application and listing the application for hearing. No written reasons were provided for the decision on the basis that it did not fall within the parameters of s 62 of the NCAT Act. On 1 February 2023, Ms Inman filed a Notice of Appeal challenging the orders of 24 January 2023 (timetabling orders). On 14 February 2023, the Tribunal heard the summary dismissal application and dismissed Ms Inman’s application for review for want of jurisdiction.
Held (refusing leave to appeal; dismissing the appeal): (i) The Appeal Panel held that the making of timetabling orders does not constitute a “decision” within the definition in s 5(1) of the NCAT Act. In doing so, it agreed with the observations of the Appeal Panel in Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 at [25]-[25]. If such orders did meet the definition of “decision”, the Appeal Panel considered that it could not have been the legislature’s intent to confer a right to appeal from timetabling orders (at [31]-[34]).
(ii) In any event, the Appeal Panel would not have granted leave to appeal from the timetabling orders – there was no basis on which to do so. None of Ms Inman’s grounds of appeal applied to those orders; there was no basis to conclude any breach of procedural fairness, any apparent bias, that the member had acted under dictation or made any other error of law. The Tribunal’s refusal to provide written reasons for the timetabling orders was unlikely to constitute an error of law, noting the observations of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [68]. Whilst s 62(2A) of the NCAT Act was not in force at the time the orders were made, the orders did not decide any substantive matter and in any event are unlikely to constitute a “decision” within the meaning of s 62 of the NCAT Act. (at [35]-[38]).
(iii) In circumstances where no written reasons had been given and Ms Inman did not provide the Appeal Panel with a sound recording or transcript of the hearing of the summary dismissal proceedings, the Appeal Panel was not in a position to assess whether the Tribunal had made any error in its summary dismissal of her application. There were no substantial reasons to allow appellate review of the summary dismissal decision and thus the Appeal Panel refused leave to appeal from that decision (at [40]-[43]). |
3. What is the proper approach to the assessment of damages where those damages are uncertain on the state of the evidence? |
Sayadi v Karimbla Properties (No 35) Pty Ltd [2023] NSWCATAP 298 Consumer and Commercial Division - Residential Tenancy A Suthers, Principal Member; P H Molony, Senior Member
In sum: The Appeal Panel held that the absence of evidence as to the second-hand value of goods does not mean a party is entitled to nominal damages only. Where goods are supported by purchase invoices, being unambiguous evidence of acquisition costs, the Tribunal may be able to engage in a rational assessment of real damages to the party, even if there is an aspect of guesswork to that calculation.
Facts: The appellants (tenants) entered into a residential tenancy agreement with the respondent (landlord). Under an addendum to the residential tenancy agreement, the tenants also rented an allocated storage cage, in which the tenants stored personal items and other equipment purchased and imported as stock for a proposed business. During the tenancy, the landlord authorised its agent to remove and dispose of the tenants’ goods stored in the storage cage, without notice to the tenants. The tenants brought an application for compensation in the amount of $15,712.94 under s 61(2) of the Residential Tenancies Act 2010 (NSW). The Tribunal found that the tenants had failed to prove the second-hand value of the items and only awarded nominal damages in the sum of $250. The tenants appealed.
Held (granting leave to appeal; allowing the appeal): (i) The Tribunal’s finding that the storage cage did not meet the definition of residential premises was incorrect. It was let with the balance of the premises let to the tenants, which was uncontroversially residential premises, and the tenants were provided with sole use of the storage cage to the exclusion of all others. Further, whilst described as an “addendum” to the residential tenancy agreement, it was also expressed to be “interdependent” with the balance of the residential premises. The storage cage formed part of the residential premises (at [19]-[21]).
(ii) The Appeal Panel provided a thorough overview of the relevant principles for the assessment of damages where the damages are uncertain on the state of the evidence. In light of those principles, the Appeal Panel held that the Tribunal was in possession of sufficient evidence to calculate real, rather than nominal, damages, even if there was an aspect of guesswork to that calculation. That included invoices, receipts and other evidence as to the original value of the items. A rational assessment was only not possible with respect to some aspects of the damages sought (at [22]-[28], [18], [4], [29]).
(iii) In 2020, the tenants had purchased and imported art works as wholesale goods with the intention of reselling them in a new business, which ultimately did not proceed. The tenants had a detailed invoice for the purchase, which equated to $10,859.12. The artworks were stored in original packaging and were unused. The Tribunal’s decision – that the loss of these bulk goods, unused, in original packaging and less than two years old entitled the tenants only to nominal damages – was unfair and inequitable. The Appeal Panel was not persuaded that their current value would be significantly different from their acquisition value. In any event, the absence of evidence as to their second-hand value should not have resulted in an award for nominal damages only. With unambiguous evidence of their acquisition cost, the Tribunal could have, for example, applied a suitable rate of depreciation. On the evidence before it, the Appeal Panel awarded damages in the amount of $10,000, allowing for exigencies such as wastage and breakages (at [31]-[33]).
(iv) The Appeal Panel also held that the absence of evidence as to second-hand value did not mean the tenants were entitled to recover nominal damages only for a range of other lost goods only supported by purchase invoices. For some items, the Appeal Panel accepted there would be some depreciation, but likely not more than 50% of their purchase price in the first year following sale. In the absence of any other evidence, the Appeal Panel awarded 50% of the purchase price of those goods, being $1,757.10. For tools between three and five years old, the Appeal Panel found that their market value would have been minimal. The unknowns with respect to these items made the task of rational assessment impossible, and thus the Appeal Panel awarded nominal damages fixed at $10.00 for the tools (at [34]-[37]). |
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YDL v YDO [2023] NSWCATAP 291 Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; L Organ, Legal Member; J Newman, General Member Catchwords: Whether Tribunal erred in its consideration of s 36 of the Powers of Attorney Act; whether the Tribunal erred in making an order for financial management pursuant to the Guardianship Act |
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Waters v RSK Custodians Pty Ltd [2023] NSWCATAP 293 Consumer and Commercial Division - Retail Tenancy Decision of: S Westgarth, Deputy President; D Ziegler, Senior Member Catchwords: APPEAL – tenant’s application alleging noise in apartment constituting a breach by the landlord of landlord’s obligations under the Residential Tenancies Act 2010 (NSW) – errors by Tribunal in rejecting tenant’s applications under ss 44 and 45 of the Residential Tenancies Act 2010 – errors of no consequence – Tribunal considered tenant’s evidence in the context of a potential breach of s 52 – failure by tenant to discharge onus of proof |
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YCI v Sydney Local Health District [2023] NSWCATAP 295 Guardianship Division Decision of: A Britton, Deputy President; C P Fougere, Principal Member; S E Taylor, Senior Member Catchwords: APPEALS –– summary dismissal of appeal ––– exercise of power to dismiss appeal because of a “want of prosecution in the proceedings” |
Gee v The Owners – Strata Plan No 32191 [2023] NSWCATAP 296 Consumer and Commercial Division - Strata Schemes Decision of: D Robertson, Senior Member; G Sarginson, Senior Member Catchwords: LAND LAW – Strata title – Appointment of compulsory strata manager – No error of law identified – No grounds for leave to appeal established |
Inman v Commissioner of Police, NSW Police Force [2023] NSWCATAP 297 Administrative and Equal Opportunity Division Decision of: S Higgins, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEAL – Whether decision to make timetabling orders was internally appealable decision – Whether leave should be granted to appeal from summary dismissal decision |
Sayadi v Karimbla Properties (No 35) Pty Ltd [2023] NSWCATAP 298 Consumer and Commercial Division - Residential Tenancy Decision of: A Suthers, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – Leave to appeal granted – assessment of tenants’ loss resulting from wrongful disposal of goods not fair and equitable – nominal damages awarded – substantial injustice – Clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013. LEASES AND TENANCIES – Residential Tenancies – wrongful disposal of tenant’s goods in breach of s 61(2) of the Residential Tenancies Act 2010 – assessment of compensation |
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FVN v Secretary, Department of Education [2023] NSWCATAP 301 Administrative and Equal Opportunity Division Decision of: A Balla, ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: HUMAN RIGHTS – discrimination – whether the Respondent discriminated against the Appellant on the ground of disability in declining to provide home assisted education – whether differential treatment – what was the correct comparator – whether education services are provided to both the child and the parents within the meaning of s 49M of the Anti-Discrimination Act 1977 (NSW) |
Lin v Commissioner of Victim Rights [2023] NSWCATAP 302 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: VICTIMS RIGHTS – whether restitution order was properly made – whether the relevant proceedings against the Appellant were civil proceedings within the meaning of s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW) |
Foo v Frew [2023] NSWCATAP 303 Consumer and Commercial Division - Strata Schemes Decision of: A Suthers, Principal Member; G Burton SC, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – appointment of compulsory strata manager – no error of law or fact – Strata Schemes Management Act 2015 (NSW) s 237 |
YEB v YEC [2023] NSWCATAP 304 Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; L Organ, Senior Member; J Newman, General Member Catchwords: Whether Tribunal erroneously made guardianship order pursuant to Guardianship Act 1987 |
Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; D Fairlie, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – appointment of compulsory strata manager - no error of law or fact - Strata Schemes Management Act 2015 (NSW) s 237 |
Trantalles v Mock [2023] NSWCATAP 306 Consumer and Commercial Division - Residential Tenancy Decision of: L. Wilson, Senior Member; D. Goldstein, Senior Member Catchwords: APPEAL – Residential tenancy – “becomes aware of the breach” |
Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCATAP 307 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – whether the Tribunal erred in failing to set aside Summonses for production – whether the Tribunal failed to apply the test of legitimate forensic purpose – whether the Tribunal ought to have set aside the Summons as amounting to a fishing expedition |
Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308 Consumer and Commercial Division - Strata Schemes Decision of: D Robertson, Senior Member; G Ellis SC, Senior Member Catchwords: APPEALS – Adequacy of reasons LAND LAW – Strata title – By-laws - Interpretation of by-law – Whether by-law is an “instrument” for the purposes of the Interpretation Act 1987 (NSW) WORDS AND PHRASES – “Instrument” |
Shojai v INA Operations Pty Ltd ATF INA Operations Trust #6 [2023] NSWCATAP 309 Consumer and Commercial Division - Residential Communities Decision of: A Suthers, Principal Member; P Molony, Senior Member Catchwords: APPEALS – adequacy of reasons – Tribunal’s obligation to give reasons under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) – when inadequate reasons require a new hearing |
Lay v Soueidan [2023] NSWCATAP 310 Consumer and Commercial Division - General Decision of: P Durack SC, Senior Member; A Lo Surdo SC, Senior Member Catchwords: APPEALS – appeal from decision made under Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 setting aside orders made in the absence of the respondent to the appeal – ancillary decision – right of appeal on a question of law – adequacy of reasons – re-determination of set aside application by the Appeal Panel – discretionary considerations |
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YFG v YFH [2023] NSWCATAP 313 Guardianship Division Decision of: I Coleman SC ADCJ, Principal Member; A Boxall, Senior Member; M Bolt, General Member Catchwords: MENTAL HEALTH — Management of estate — Administration by another person — Review by NSW Civil and Administrative Tribunal |
Amirbeaggi v NSW Self Insurance Corporation (No 3) [2023] NSWCATAP 314 Consumer and Commercial Division - Home Building Decision of: A Suthers, Principal Member Catchwords: COSTS – application for a stay – allegation Tribunal, and therefore the Appeal Panel, lacks jurisdiction – whether jurisdiction as to costs remains if not consequent upon or linked to the adjudication of aspects of the matter which may be in federal jurisdiction |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
