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| NCAT Appeal Decisions Digest July 2015 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 2015. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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Jenkinson v Chaw [2015] NSWCATAP 127
Consumer & Commercial Division - General
Judgment of: WRIGHT J, President; J REDFERN PSM, Principal Member; P DURACK SC, Senior Member Catchwords: APPEAL – jurisdiction of Tribunal to deal with proceedings in which the only claim is for damages against a person said to be involved in misleading and deceptive conduct – whether a “consumer claim” needs to be against a supplier – decision in Robinson Murray v Bargshoon [2015] NSWCATAP 19 overruled – adequacy of reasons |
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BDK v Department of Education and Communities [2015] NSWCATAP 129
Administrative & Equal Opportunity Division - GIPA
Judgment of: Acting Judge K P O'CONNOR AM, Deputy President Appeals; Emeritus Professor M CHESTERMAN, Principal Member Catchwords: PRIVACY – Application to Amend Personal Information held by Agency – Respondents application for summary dismissal granted because the proceedings were vexatious – Interlocutory appeal - Leave granted - Whether Tribunal’s decision to hear application on the papers denied procedural fairness – whether Tribunal complied with pre-condition in relation to giving parties the opportunity to make submissions in relation to that decision - Whether reasons for decision adequate if there is a lack of reference to appellants submissions – Meaning of ‘vexatious’ – exercise of an available legal right - predominant purpose that is ulterior – Appeal dismissed. Privacy and Personal Information Protection Act 1998, s 15; Civil and Administrative Tribunal Act 2013, s 50(2), s 50(3); s 55(1)(b) |
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Ideal Constructors Pty Ltd v Wikeepa [2015] NSWCATAP 131
Consumer & Commercial Division - Home Building
Judgment of: M SCHYVENS, Deputy President; K ROSSER, Senior Member Catchwords: Civil and Administrative Tribunal NSW - Appeal Panel - residential building work - Tribunal decided on a basis that was not argued in the proceedings - denial of procedural fairness |
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MacDonald v Belfield [2015] NSWCATAP 132
Consumer & Commercial Division - General
Judgment of: M HARROWELL; D PATTEN, Principal Members Catchwords: Leave to appeal – not fair and equitable, evaluation of evidence supply of goods and service – Consumer Guarantees |
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Bogoevski v Stricklands [2015] NSWCATAP 133
Consumer & Commercial Division - Tenancy
Judgment of: M HARROWELL, Principal Member; G WALKER, Senior Member Catchwords: Termination of residential tenancy – multiple applications Effect of stay orders on termination Disqualification of presiding member in subsequent hearing. Failure to allow issue of summons |
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Hannaford v Gao [2015] NSWCATAP 134
Consumer & Commercial Division - Tenancy
Judgment of: N HENNESSY, Deputy President; M HARROWELL, Principal Member Catchwords: Internal appeal on question of law – residential tenancies – termination of tenancy for unpaid rent – no appearance at hearing below – appeal lodged out of time |
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Bischoff & Ors v Rita Sahade & Anr [2015] NSWCATAP 135
Consumer & Commercial Division - Strata
Judgment of: M HARROWELL, Principal Member; P WASS SC, Senior Member Catchwords: Appeals- jurisdiction of Appeal Panel to determine appeal of Tribunal order following referral under s164 of Strata Schemes Management Act Joinder of party- power to join a person on appeal S162 Appointment of strata managing agent- meaning of management structure, not functioning satisfactorily, Error of law- no evidence |
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Housing NSW v Hamilton [2015] NSWCATAP 136
Consumer & Commercial Division - Social Housing
Judgment of: A BRITTON, Principal Member; R TITTERTON, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL — scope of Tribunal’s power to make orders under Residential Tenancies Act 2010 — parameters of “ancillary orders” under s 188(c) of Residential Tenancies Act 2010 (NSW) WORDS AND PHRASES — meaning of word “compensation” in s 187(1)(d) of Residential Tenancies Act 2010 (NSW) PRACTICE AND PROCEDURE — remittal of proceedings — whether Tribunal should be differently constituted |
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ALZ v WorkCover NSW [2015] NSWCATAP 138
Administrative & Equal Opportunity Division - HRIPA
Judgment of: Acting Judge K P O'CONNOR AM, Deputy President Appeals; P H MOLONY, Senior Member Catchwords: PRIVACY – Health Information – Complaint by employee to regulatory agency alleging bullying - agency obtained medical report about complainant from complainant’s employer without notice to complainant –whether that conduct and subsequent use and other action compliant with Health Privacy Principles – Appeal by review applicant against Tribunal findings of non-contravention – Tribunal finding set aside in relation to compliance with Health Privacy Principle 6 – Finding of contravention entered – otherwise appeal dismissed. Health Records and Information Privacy Act 2002, Health Privacy Principles 1, 5, 6, 9, 10, 11 |
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Linda Kendray v New South Wales Land and Housing Corporation [2015] NSWCATAP 139
Consumer & Commercial Division - Social Housing
Judgment of: J REDFERN, Principal Member; G MEADOWS, Senior Member Catchwords: APPEAL – termination of social housing tenancy – extension of time – appeal ground identified by Appeal Panel – procedural fairness – adequacy of reasons – failure to make findings on mandatory considerations |
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Bailey v Plasterfix Australia Pty Ltd [2015] NSWCATAP 140
Consumer & Commercial Division - Home Building
Judgment of: L P ROBBERDS QC; S THODE, Senior Member Catchwords: Owner’s claim that builder’s work was defective – onus of proof that work defective and reasonable cost to rectify – not clear that claim of defective work dealt with by Tribunal – variation of Tribunal decision by Appeal Panel |
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Giappichello and Anr v Eakin's A-1 Pools Pty Ltd [2015] NSWCATAP 141
Consumer & Commercial Division - Home Building
Judgment of: M HARROWELL; D ROBINSON, Principal Members Catchwords: Consumer Trader and Tenancy Tribunal- jurisdiction of Appeal Panel in respect of a decision made prior to the establishment of the NSW Civil and Administrative Tribunal (NCAT) Section 68 of the Consumer Trader and Tenancy Tribunal Act, 2001- validity of decision made after the establishment of NCAT and jurisdiction of Appeal Panel to determine an appeal from such a decision |
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Khashashneh v Travel Compensation Fund [2015] NSWCATAP 142
Consumer & Commercial Division - Commercial
Judgment of: N HENNESSY LCM, Deputy President; S THODE, Senior Member Catchwords: PROCEDURAL FAIRNESS – duty to provide a fair hearing – apprehended bias – denial of reasonable opportunity to present case – APPEAL - re-consideration of merits of application for compensation from Travel Compensation Fund |
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BWW v NSW Trustee and Guardian [2015] NSWCATAP 143
Guardianship Division - Financial Management Order
Judgment of: N HENNESSY LCM, Deputy President; A BRITTON, Principal Member; Dr I BEALE, Professional Member Catchwords: INTERNAL APPEAL – no question of law - leave required before appeal can proceed -refusal to revoke financial management order – inaccuracies in Tribunal’s reasons for decision – alleged bias of medical professional – no justification for granting leave to appeal |
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IK Chemists Pty Ltd v CHOF4 Artarmon Pty Ltd [2015] NSWCATAP 144
Consumer & Commercial Division - Commercial
Judgment of: L ROBBERDS QC; R TITTERTON, Senior Members Catchwords: Retail Tenancy Act – monetary limit on Tribunal’s jurisdiction – whether Supreme Court claim by respondent sublessor in excess of monetary limit is to be taken into account on monetary limit of Tribunal’s jurisdiction – whether retail dispute between the parties was for a monetary sum in excess of the jurisdictional limit of the Tribunal |
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Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 145
Consumer & Commercial Division - Home Building
Judgment of: Dr J G RENWICK SC; S THODE, Senior Members Catchwords: Civil and Administrative Tribunal – Appeal Panel – costs application – no special circumstances – application refused |
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Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147
Consumer & Commercial Division - Home Building
Judgment of: A COLEMAN SC; R TITTERTON, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – extension of time in which to appeal – leave to appeal – bias of member constituting tribunal |
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Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148
Consumer & Commercial Division - Home Building
Judgment of: J REDFERN, Principal Member; R TITTERTON, Senior Member Catchwords: APPEAL –– expert evidence - no probative value –no basis for opinion expressed - non-compliance with Tribunal Procedural Direction – no evidence to ground significant finding - decision not fair and equitable – costs thrown away by amendment – special circumstances |
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Commissioner of Victims Rights v BGF [2015] NSWCATAP 149
Administrative & Equal Opportunity Division - Victims Compensation
Judgment of: M SCHYVENS, Deputy President; S HIGGINS, Principal Member Catchwords: APPEAL – Commissioner for Victim’s Rights – power to make provisional order – meaning of ‘relevant offence’ and ‘act of violence’ – conviction – error of law and of fact – finding of fact based on erroneous submissions – fundamental error of fact – jurisdictional error |
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Gaynor v Burns [2015] NSWCATAP 150
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: BOLAND J ADCJ, Deputy President; Emeritus Professor M CHESTERMAN, Principal Member; L ROBBERDS QC, Senior Member Catchwords: APPEAL – application for costs of appeal allowed by consent. Whether there are “special circumstances” for the purposes of s 60 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). Whether costs order should be made in favour of respondent to the appeal. Whether costs should be payable “forthwith” |
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Strajman v Body & Anr [2015] NSWCATAP 151
Consumer & Commercial Division - Motor Vehicle
Judgment of: M HARROWELL, Principal Member; P H MOLONY, Senior Member Catchwords: Consumer claim – sale of second hand motor vehicle by licenced motor without a statutory warranty and without an inspection report following re-registration of vehicle – obligation of motor dealer to provide inspection report – inadequate reasons for decision – obligation on Tribunal to consider return of vehicle to motor dealer when a full refund is ordered |
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Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152
Consumer & Commercial Division - Tenancy
Judgment of: A BRITTON, Principal Member; R TITTERTON, Senior Member Catchwords: ADMINISTRATIVE LAW — appeal from Consumer and Commercial Division of NCAT –– whether leave to appeal should be granted – whether decision under appeal was not fair and equitable COSTS — whether failure of applicants to appear constitutes “special circumstances” — whether the failure of a party to accept an offer constitutes “special circumstances” |
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Hasan v Pirasta Pty Ltd [2015] NSWCATAP 153
Consumer & Commercial Division - Commercial
Judgment of: M HARROWELL, Principal Member; J McATEER, Senior Member Catchwords: Appeal against costs order. Discretion applicable to claim in Consumer and Commercial Division-claim in excess of $30,000 |
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Lotus Constructions Pty Ltd v Staunton [2015] NSWCATAP 154
Consumer & Commercial Division - Home Building
Judgment of: S WESTGARTH, Deputy President; P M WASS SC, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building – failure to afford procedural fairness – expert evidence – appeal allowed – costs |
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TAL Life Limited v CAS [2015] NSWCATAP 155
Administrative & Equal Opportunity Division - Equal Opportunity
Judgment of: R SEIDEN SC; S HIGGINS, Principal Members Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – interlocutory decision – leave to appeal – meaning of decision - leave refused. APPEAL - Civil and Administrative Tribunal (NSW) – interlocutory decision – leave to appeal - practice and procedure – late filing of evidence – explanation for delay – part evidence in reply – no prejudice to respondent – leave to file granted |
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Kang v Khan [2015] NSWCATAP 156
Consumer & Commercial Division - Home Building
Judgment of: P WASS SC; K ROSSER, Senior Member Catchwords: Appeal - Whether decision not fair and equitable; whether new evidence was not reasonably available at time of the hearing; whether denial of procedural fairness |
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Henry (previously Holyman) v G and S Houston [2015] NSWCATAP 158
Consumer & Commercial Division - Tenancy
Judgment of: L P ROBBERDS QC; T SIMON, Senior Members Catchwords: Alleged repudiation of lease by a co-tenant – alleged acceptance by landlords – did disclaimer occur – apprehended violence order obtained by one co-tenant against the other co-tenant – what effect, if any, did that have on the lease |
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