| | | | | | | NCAT Appeal Decisions Digest May 2017 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 May 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 May 2017.
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| Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100
Consumer and Commercial Division - Strata
Judgment of: Wright J, President; M Harrowell, Principal Member; R Seiden SC, Principal Member Summary: The Appeal Panel held (at [1], [131]) that an appeal against any order of an adjudicator under s 177 of the Strata Scheme Management Act 1996 (NSW) (1996 Act) is to be dealt with as an external appeal to the Tribunal, whether the adjudicator’s decision was made before or after the repeal of the 1996 Act on 30 November 2016. Accordingly, any such appeals are to be heard by way of a new hearing (or hearing de novo) before a Member of the Tribunal sitting in the Consumer and Commercial Division (at [39]).
As a starting point, the Appeal Panel held (at [60]-[61]) that an appeal right, under s 177 of the 1996 Act, had been preserved under s 30(1)(c) of the Interpretation Act, on the basis that such a right is “accrued” at the time that a party commences proceedings at first instance. The Appeal Panel observed (at [57]-[61] and [81]-[82]) that such a proposition was consistent with the decisions in Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 at [23]; R v Hamra [2016] SASCFC 130 at [22]-[23]; Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 at 218; Colonial Sugar Refining Co Ltd v Irving [1905] AC 369.
In determining the nature of an accrued appeal right, the Appeal Panel construed (at [72]-[75]) cll 7 and 9 of Sch 4 of the 2015 Act, holding that cl 7 applied to appeal proceedings arising under s 177 of the 1996 Act. These provisions relevantly provide that:
“7 Existing proceedings
Any proceedings commenced but not determined or finalised under a provision of the former Act are to be dealt with and determined as if the former Act had not been repealed.
…
9 Existing orders under former Act
An order made by an Adjudicator or a Tribunal under the former Act, and in force immediately before the commencement of this clause, is taken to have been made by the Tribunal under the corresponding provision of this Act.”
The Appeal Panel first construed (at [77]-[83]) the meaning of the word “proceedings”, holding (at [83]) that the phrase was “not limited to first instance proceedings commenced by the application for an order from an adjudicator or from the Tribunal under the 1996 Act” and included “any right of appeal under the 1996 Act in respect of orders made at first instance.” The Appeal Panel then considered (at [84]-[94]) the limiting phrase “not determined or finalised”, holding (at [94]) that:
“For the purposes of cl 7:
(1) Proceedings have been “determined” if a decision or order has been made which brings the proceedings to an end, whether or not the decision or order may be the subject of appellate or other review. There has been a determination, even if it is liable to be set aside.
(2) Proceedings, which have inherent in them a right of appeal, have been “finalised” if they have been completed or disposed of in their entirety, that is, if any rights of appeal have been exhausted.”
Finally, the Appeal Panel rejected (at [129]) the parties’ submissions that an appeal right lay by way of an internal appeal due to effect of cl 9 of Sch 4 of the 2015. Its reasons for doing so are given at [106]-[128].
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| Owners Corporation SP 79417 v Trajcevski [2017] NSWCATAP 101
Consumer and Commercial Division - Home Building
Judgment of: P Callaghan SC, Principal Member; D Goldstein, Senior Member Summary: The Appeal Panel dismissed an appeal from the Tribunal, applying the principle that a builder does not owe a duty of care to a subsequent purchaser, being an owners’ corporation in the present case. This principle was established in Bryan v Maloney (1995) 182 CLR 609 and followed in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515. The Appeal Panel followed (at [44]-[46]) the observations of Gageler J in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185, which are summarised as follows:
1) In Bryan v Maloney, the High Court held that a professional builder who constructs a house for an owner of land owes a prima facie duty to a subsequent owner of the house to exercise reasonable care to avoid foreseeable damage in particular circumstances: Brookfield Multiplex Ltd at [179].
2) Those circumstances are limited to the diminution in value of the house when a latent and previously unknown defect in its footings becomes manifest and may be equated to the amount which would necessarily be expended in remedying the inadequate footings and their consequences: Brookfield Multiplex Ltd at [179].
3) The relationship between a builder and subsequent owner is characterised by the assumption of responsibility on the part of the builder and the likely reliance on the part of the owner. The decision in Bryan v Maloney turned on the particular economic loss involved in that case and that the building had been erected to be used as a permanent dwelling house: Brookfield Multiplex Ltd at [180].
4) Outside that category of case identified in Bryan v Maloney, a builder has no duty in tort to exercise reasonable care, in the execution of building work, to avoid a subsequent owner incurring the cost of repairing latent defects in the building: Brookfield Multiplex Ltd at [185].
5) The rationale for this position is that subsequent owners are ostensibly able to protect themselves against incurring economic loss of that nature, by virtue of the freedom they have in choosing the price and non-price terms on which they are prepared to contract to purchase: Brookfield Multiplex Ltd at [186].
The Appeal Panel also considered (at [47]-[48]) the governing statutory regime of the Home Building Act 1989 (NSW), citing the observations of Crennan, Bell and Keane JJ in Brookfield Multiplex Ltd (at [150]):
“An owners corporation acquires the common property in a strata scheme without any outlay on its part. Its assets are not diminished by the acquisition, at least if the common property is worth more than the cost of repairing latent defects (and there is no suggestion here that the common property is worth less than the cost of repair). Accordingly, if one considers the owners corporation independently of the individual lot owners, it is impossible to see that it has suffered any loss by reason of the quality of the common property vested in it.
If the respondent is viewed as the alter ego of the purchasers from the developer, the respondent’s position is not any stronger…”
Finally, the Appeal Panel stated (at [48]) there were additional factual and legal considerations, which supported its holding that the builder did not owe a duty of care to the owners’ corporation, namely:
“First, that the statutory regime under consideration in Brookfield Multiplex includes the statutory warranties under the HBA, for example Crennan, Bell and Keane JJ in Brookfield Multiplex said at [132] that such provisions “supplement the common law of contract” and at [134] that “By enacting such a scheme of statutory warranties, the legislature adopted a policy of consumer protection…”. Secondly, that the statutory intervention of the owners corporation is a measure of disconformity between the respective positions of the purchasers and of the owners corporation (cf French CJ in Brookfield Multiplex at [28]). Thirdly, that we do not see that the facts asserted in the appellant’s submissions and in the particulars given in the Notice of Appeal would, if established, constitute sufficient circumstances to make this a special category of case as spoken about by Gageler J in Brookfield Multiplex such as to bring it within a Bryan v Maloney situation.”
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| EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102
Consumer and CommercialDivision - Home Building
Judgment of: Hennessy LCM, Deputy President, G Sarginson, Senior Member Summary: The Appeal Panel rejected (at [31]-[37]) an appeal ground, which alleged that the Tribunal at first instance had erred in failing to give weight to expert evidence. The appellant characterised the appeal ground as a breach of procedural fairness and alleged that the Tribunal should have granted it a short adjournment to remedy deficiencies in its evidence (at [31]). In rejecting the appeal ground, the Appeal Panel held (at [33]) that:
“There is no breach of procedural fairness involved in considering evidence and then giving it little or no weight. Nor is the Tribunal obliged to offer a party an adjournment to improve on their expert evidence: Cameron v Ozzy Tyres Pty Ltd [2016] NSWCATAP 70 at [84]. Failure to offer an adjournment, even where no adjournment is sought, may constitute a denial of procedural fairness in certain circumstances: Italiano v Carbone [2015] NSWCA 177; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [4].”
The Appeal Panel then summarised the reasons of the Tribunal at first instance for affording the appellant’s expert evidence little or no weight, holding (at [35]) that:
“The first reason for giving the evidence little or no weight was that the expert had not complied with the Civil and Administrative Tribunal Expert Code of Conduct. Depending on the circumstances, that can be a legitimate basis for according a report little or no weight: Radcliffe v Tile Rescue Pty Ltd [2015] NSWCATAP 160 at [5] and [12]). Secondly, and more significantly, the Member was not satisfied that the opinion of EK Construction’s expert was impartial. The report advocated for one party, rather than expressing an impartial view. In those circumstances it was open to the Member to give significantly reduced weight or no weight to that evidence.”
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| CYL v YZA [2017] NSWCATAP 105
Guardianship Division - Privacy
Judgment of: K O’Connor AM ADCJ, Deputy President, Appeals; G Walker, Senior Member Summary: The Appeal Panel rejected (at [60]-[65]) an appeal ground, which alleged that the Tribunal at first instance had failed to give adequate reasons for its decision. As a starting point, the Appeal Panel considered (at [61]) the Tribunal’s duty to give reasons in circumstances where a decision-maker is required to deal with large bodies of evidence. In doing so, the Appeal Panel followed the statement of Allsop P, in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], who observed that a trial judge, when dealing with large bodies of evidence, may be:
“forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression ... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.”
Furthermore, the Appeal Panel held (at [63]-[64]) that the same standard for reasons imposed on courts should apply to the Tribunal. This standard, which was relevantly summarised by Basten JA (Beazley JA and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], is expressed as follows:
“It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.”
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| Watkins v Woolworths Limited [2017] NSWCATAP 125
Consumer and Commercial Division - General
Judgment of: M Craig QC, Principal Member; D Goldstein, Senior Member Summary: The Appeal Panel dismissed an appeal, holding that the appellant had failed to satisfy either the subjective test for actual bias (at [43]) or objective test for apprehended bias (at [89]) on the part of the Tribunal Member at first instance.
In relation to the claim for actual bias, the Appeal Panel held (at [40]) that the test requires:
“cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy.”
In relation to the claim for apprehended bias, the Appeal Panel held (at [44]) that the objective test, as expressed by the High Court in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31], requires the decision-maker to determine:
“whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide.”
The Appeal Panel, applying Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8], then held that the test for apprehended bias involved a two-step process, stating (at [46]) that:
“First, it requires an identification of those matters that might lead the decision-maker to decide a case “other than on its legal and factual merits.” The second step, described by the plurality as “no less important” than the first step, is the “articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.” Only when those steps have been taken can the reasonableness of the asserted apprehension be assessed.”
Furthermore, following Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; [1990] HCA 31, the Appeal Panel held (at [47]) that the relevant fair-minded lay observer has “knowledge of the salient facts upon which the claim is made and upon the processes of the tribunal or court and its members when determining disputes or actions that comes before them”.
Finally, in the light of the observations of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 at 352, the Appeal Panel held that restraint must be exercised when determining claims for apprehended bias, stating (at [51]) that:
“It is fundamental to the proper administration of justice that a litigant is not entitled to select the member of a court or tribunal who is to determine that litigant’s cause. Equally, it is not only fundamental that the occupier of judicial or quasi-judicial office perform the functions that he or she is appointed to perform fairly and impartially but also that the holder of such office not readily accede to a recusal request unless a proper basis for that request is demonstrated.”
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| | | Keyword summaries for all NCAT Appeal Panel decisions made during May 2017.
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| Get Qualified Australia Pty Ltd v Schott [2017] NSWCATAP 96
Consumer and Commercial Division - General
Judgment of: R Seiden SC, Principal Member, S Thode, Senior MemberCatchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – no question of law – leave to appeal – decision not against weight of evidence – decision not unfair or inequitable – no new evidence. |
| Nancarrow v Donvito [2017] NSWCATAP 97
Consumer and Commercial Division - Commercial
Judgment of: Hon F Marks, Principal Member, T Simon, Senior MemberCatchwords: Appeal-failure to give reasons-appeal as of right-further disposition of proceedings - Dividing Fences Act application-held existing fence sufficient dividing fence- Application remitted for further hearing. |
| Snowy River Real Estate (NSW) Pty Ltd v Georgi [2017] NSWCATAP 98
Consumer and Commercial Division - General
Judgment of: Hon F Marks, Principal Member, T Simon, Senior MemberCatchwords: Agent’s commission - agency agreement - held signed by estranged husband on behalf of wife - real estate agent entitled to retain commission- appeal upheld. |
| Sea Breeze Homes v Heffley [2017] NSWCATAP 99
Consumer and Commercial Division - Home Building
Judgment of: K Rosser, Principal Member, F Corsaro SC, Senior MemberCatchwords: Appeal – No question of law – Whether leave ground established. |
| Barron v Ban [2017] NSWCATAP 103
Consumer and Commercial Division - General
Judgment of: R Seiden SC, Senior Member, S Thode, Senior MemberCatchwords: ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – appeal – no error of law –leave to appeal – whether serious miscarriage of justice because decision not fair and equitable – no miscarriage of justice from the way case conducted or decided. |
| | Jackson v N K Tiling Pty Ltd [2017] NSWCATAP 106
Consumer and Commercial Division - General
Judgment of: A P Coleman SC, Senior Member, J T Kearney, Senior MemberCatchwords: PROCEDURAL FAIRNESS: rejection of documents not served in accordance with directions and for which no extension of time sought; where party did not understand requirement to seek extension; whether adjournment should have been offered by Tribunal. |
| Khanna v Baweja [2017] NSWCATAP 107
Consumer and Commercial Division - Residential Tenancies
Judgment of: L Pearson, Principal Member, R Titterton, Senior MemberCatchwords: APPEAL: Residential tenancies – parties to residential tenancy agreement – residential premises – termination of residential tenancy agreement – excessive rent – claim for compensation – whether error on question of law – whether leave to appeal should be granted. |
| Styles v Wollondilly Shire Council [2017] NSWCATAP 108
Administrative and Equal Opportunity Division - GIPA
Judgment of: S Higgins, Principal Member, D Fairlie, Senior MemberCatchwords: APPEAL – appeal from decision of the Tribunal in the Administrative and Equal Opportunity Division concerning the appellant’s application for review of the decision of the respondent to request an advance deposit in dealing with appellant’s application for access to specified government information under the Government Information (Public Access) Act 2009 (GIPA Act – scope of access request – whether excessive and unnecessary searches conducted by the respondent – no errors of law or fact identified.
Jurisdiction - whether Tribunal had power to make an order setting aside a decision of the respondent which was not the subject of the appellant’s application for review and which the respondent conceded had been made in error, contrary to s 70(1) of the GIPA Act. |
| Chowdhury v Hossain [2017] NSWCATAP 109
Consumer and Commercial Division - Home Building
Judgment of: K Rosser, Principal Member, J Lucy, Senior MemberCatchwords: Appeal – Whether appellant notified of the hearing – whether a denial of procedural fairness – whether rehearing should be ordered. |
| 3D Design & Build Pty Ltd v Kay [2017] NSWCATAP 110
Consumer and Commercial Division - Home Building
Judgment of: C Fougere, Principal Member, S Thode, Senior MemberCatchwords: APPEAL – Home Building Act – renewal proceedings – findings in relation to rectification works – not against weight of evidence – no new evidence has arisen that was not reasonably available in the proceedings under appeal – leave to appeal refused. |
| Bridgford v Brien [2017] NSWCATAP 111
Consumer and Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President, D Goldstein, Senior MemberCatchwords: Slip Rule – Section 63, procedural fairness, rent reduction, application and claim for compensation. |
| McClenahan v Owners Corporation SP69904 [2017] NSWCATAP 112
Consumer and Commercial Division - Strata
Judgment of: M Harrowell, Principal Member, R Seiden SC, Principal MemberCatchwords: Strata Schemes Management Act- Section 183- application to reallocate units, requirement for valuation, date of valuation and certificate, date of registration of strata plan, relevance of plan of consolidation in determining date for valuation, initial unit allocation unreasonable. Procedural fairness- cross-examination of expert where no opposing expert evidence, permissibility, opportunity to make submissions re answers given.
Leave to appeal- Evaluation of evidence, finding available. |
| Godla v Sundaramurthy [2017] NSWCATAP 113
Consumer and Commercial Division - Residential Tenancies
Judgment of: L Pearson, Principal Member, Dr J Lucy, Senior MemberCatchwords: APPEAL: Residential tenancies – Termination order – Whether error of law – Whether leave to appeal should be granted on other grounds. |
| Daoud v Hammoud [2017] NSWCATAP 114
Consumer and Commercial Division - Home Building
Judgment of: P Durack SC, Senior Member, D Charles, Senior MemberCatchwords: APPEAL – home owners’ renewal application in respect of defective and incomplete residential building work – builder’s cross application for balance of contract price including variations – adequacy of reasons on particular disputed items - procedural fairness - appeal allowed in part. |
| | Shabandeh v Netregistry Pty Ltd [2017] NSWCATAP 116
Consumer and Commercial Division - General
Judgment of: S Westgarth, Deputy President, R Hamilton, Senior MemberCatchwords: CONSUMER CLAIM – destruction of website – orders under section 79N Fair Trading Act. |
| Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117
Consumer and Commercial Division - General
Judgment of: Lionel Robberds QC, Senior Member, T Simon, Senior MemberCatchwords: Breach of contract – damages - discharge of onus of proof – what evidence is sufficient – no application of the difficulty in estimating damages rule – costs – no special circumstances. |
| Noorbergen v Henderson [2017] NSWCATAP 118
Consumer and Commercial Division - Commercial
Judgment of: S Westgarth, Deputy President, J Kearney, Senior MemberCatchwords: Section 11 notices, jurisdiction of Tribunal, agreements, section 26. |
| Ace Action Motors Pty Ltd v Cooper [2017] NSWCATAP 119
Consumer and Commercial Division - Motor Vehicle
Judgment of: M Harrowell, Principal Member, R Titterton, Senior MemberCatchwords: Claim for breach of consumer guarantee under the Australian Consumer Law (NSW), leave to appeal, no issue of principle. |
| Beattie v Wesley Mission [2017] NSWCATAP 120
Consumer and Commercial Division - Retirement Villages
Judgment of: D Cowdroy QC ADCJ, Principal Member, A Boxall, Senior MemberCatchwords: Costs - litigant in person – no issue of principle. |
| Guiffre v Srinivasan [2017] NSWCATAP 121Consumer and Commercial Division - Home Building
Judgment of: R Hamilton SC, Senior Member, DAC Robertson, Senior MemberCatchwords: CONTRACT – Home Building – builder entered contract to complete building work – builder appointed third party project manager with authority to receive payments – third party carried out building work without reference to builder – third party received payments and did not account to builder – work not completed – builder liable for failure to complete work. |
| Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122
Consumer and Commercial Division - Home Building
Judgment of: M Harrowell, Principal Member, A Boxall, Senior MemberCatchwords: Administrative law- dismissal for want of prosecution, relevant considerations, miscarriage of discretion
Civil and Administrative Tribunal Act, s36 and relevance of guiding principle when considering dismissal for want of prosecution. |
| Kalache v Kalache [2017] NSWCATAP 123
Consumer and Commercial Division - Residential Tenancies
Judgment of: Hennessy LCM, Deputy President, Emeritus Prof G Walker, Senior MemberCatchwords: RESIDENTIAL TENANCIES - whether finding that there was a residential tenancy agreement between appellant and respondent was made without evidence – whether inadequate reasons given for that finding – whether third party should be joined as a respondent to the proceedings. |
| Vescio v Vidovic [2017] NSWCATAP 124
Consumer and Commercial Division - Home Building
Judgment of: S Westgarth, Deputy President, I H Bailey AM SC, Senior MemberCatchwords: APPEAL – Home Building. |
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