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| NCAT Appeal Decisions Digest September 2016 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 September 2016. 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 September 2016.
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| McPherson v Mace (No 2) [2016] NSWCATAP 198
Consumer & Commercial Division - Home building
Judgment of: M Harrowell, Principal Member; R Titterton, Senior Member
Summary: The Appeal Panel considered the issue of costs in circumstances where an allegation of fraud was made. It found that the raising of the issue of fraud (which was not pursued) created special circumstances justifying the making of a costs order ([41]), but, in circumstances where the appeal was otherwise ordinary and both parties were partially successful, the costs order was limited to the costs of responding to the allegation of fraud ([42]-[43]). |
| Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216
Consumer & Commercial Division - Residential parks
Judgment of: Wright J, President; R Seiden SC, Principal Member; R Titterton, Senior Member
Summary: In Allen v TriCare, the Appeal Panel considered the operation of the Residential Parks Act 1998 (NSW) (now repealed) and the transitional provisions in the Residential (Land Lease) Communities Act 2013 (NSW).
The decision summarises the principles of statutory construction at [32], including the proper approach to repealing Acts and transitional provisions:
[32] (5) In relation to repealing Acts and transitional provisions, the effect of s 30(1) of the Interpretation Act 1987 (NSW) (the Interpretation Act) in preserving rights, obligations or liabilities acquired or accrued under a repealed Act and legal proceedings or remedies in respect of such rights, obligations or interests may be displaced by the transitional provisions found in the repealing Act in so far as they express a contrary intention: Interpretation Act, s 5(2); ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [27]; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [35];
The Appeal Panel also considered the proper approach to expert evidence in the Tribunal (at [190]–[191]):
[190] In Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, the Court of Appeal explained the approach that should be taken to expert evidence by a decision making body that is not bound by the rules of evidence. That case concerned the Workers Compensation Commission, which operates under provisions which were very similar, but not identical, to s 28(2) and (3) of the CTTT Act and s 38(2) and (4) of the NCAT Act. The Court of Appeal held, in Hancock at [82] and [83]:
82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report . In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.
[191] This reasoning and approach should be applied to proceedings in this Tribunal, when the rules of evidence do not apply, and to proceedings conducted under the CTTT Act. In these situations, the question of the acceptability of expert evidence in the Tribunal will be one of weight not admissibility. In addition, the Tribunal is required to be satisfied that expert evidence provides a satisfactory basis upon which it can make its findings. |
| ZCP v ZCQ [2016] NSWCATAP 213
Guardianship Division - Financial management order
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; R Deutsch, Senior Member (Legal); B McPhee, Senior Member (Professional)
Summary: The Appeal Panel considered a submission that P had been denied procedural fairness in circumstances where the Tribunal’s decision recorded allegations of misconduct (and P’s denial of the allegations) without giving P a full opportunity to reply:
[48] On the other hand, we think it unwise for a Tribunal decision to ventilate a serious allegation which if true would cast considerable doubt on the suitability for the role of a carer, and then just simply note that it is denied. Ideally, a view should be expressed as to what is to be done with the allegation. It would be better if the Tribunal stated expressly what regard if any it had given to the allegation.
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Keyword summaries for all NCAT Appeal Panel decisions made during September 2016.
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McPherson v Mace (No 2) [2016] NSWCATAP 198
Consumer & Commercial Division - Home building
Judgment of: M Harrowell, Principal Member; R Titterton, Senior Member Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Costs of appeal – where allegation of fraud made – denied – and then not pressed at the hearing – Costs limited to responding to allegation of fraud ordered |
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ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200
Guardianship Division - Financial management order
Judgment of: N Hennessey LCM, Deputy President; R Titterton, Senior Member; M Bolt, General MemberCatchwords: APPEAL - from a decision of the Guardianship Division of the Civil and Administrative Tribunal not to make an order under s 36(2) of the Powers of Attorney Act 2003 (NSW), but pursuant to s 37 of that Act to treat the application for review as an application for a financial management order. APPEAL - from a decision of the Guardianship Division of the Civil and Administrative Tribunal to commit the management of the estate of ZCL to the NSW Trustee and Guardian |
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Donoghoe v Compass Housing Services Co Ltd [2016] NSWCATAP 201Consumer & Commercial Division - Social housing
Judgment of: Hennessy LCM, Deputy President; Prof G Walker, Senior Member Catchwords: APPEAL – social housing – whether previous decision made by Appeal Panel operates as an issue estoppel preventing appellant from re-litigating that matter – whether Tribunal made an error in refusing to accept an application out of time – costs of self-represented appellant – special circumstances |
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Fryer v Owston t/as Rowans Floor Sanding [2016] NSWCATAP 202
Consumer & Commercial Division - General
Judgment of: S Westgarth, Deputy President; J Wakefield, Senior MemberCatchwords: APPEAL – leave, Schedule 4 clause 12 of the Civil and Administrative Tribunal Act 2013, against the weight of evidence, not fair and equitable, exercise of discretion |
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Wickham v Tiffney [2016] NSWCATAP 203Consumer & Commercial Division - Home building
Judgment of: S Higgins, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEAL - appeal by appellant homeowner from a decision of the Tribunal in the Consumer and Commercial Division to make no “further or additional order” as to costs – Tribunal had a discretion to award costs under clause 20(4) of the Consumer Trader and Tenancy Regulation and rule 38(2)(b) of the Civil and Administrative Tribunal Rules - whether the Tribunal erred in law in failing exercise its discretion judicially and/or reasonably – Tribunal made findings on no evidence or findings were not supported by the evidence – denial of procedural fairness – Tribunal found to have made an error in legal principle in the exercise of its discretion – appeal allowed |
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Basha v Rathsam [2016] NSWCATAP 204
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; T Simon, Senior Member Catchwords: RESIDENTIAL TENANCY - Denial of procedural fairness- application to extend time to lodge termination application, exercise of discretion, termination of periodic tenancy. Representation- no objection to landlord’s agent raised |
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Sun v Li (No 2) [2016] NSWCATAP 205
Consumer & Commercial Division - Home building
Judgment of: A Coleman SC; J Currie, Senior Members Catchwords: COSTS: Costs of an appeal; Rules 38 and 38A Civil and Administrative Rules 2014; No special circumstances required; costs in discretion of Tribunal |
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Sunol v Burns [2016] NSWCATAP 206
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Dr J Renwick SC; R Perrignon, Senior Members Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Anti-Discrimination – Homosexual vilification – Is it a vilifying public act of the respondent to invite viewers to follow a link to vilifying material |
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Raju v Sharma [2016] NSWCATAP 207
Consumer & Commercial Division - Tenancy
Judgment of: R Titterton; D Fairlie, Senior MembersCatchwords: APPEAL from a decision of the Consumer and Trader Division of the Civil and Administrative Tribunal – refusal of the Tribunal to adjourn proceedings to allow evidence to be adduced at a later date – no question of principle |
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ZBR v ZBS [2016] NSWCATAP 209
Guardianship Division - Guardianship order
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; A Boxall, Senior Member; J Newman, General MemberCatchwords: GUARDIANSHIP – Order made by Guardianship Division to continue appointment of guardian - Whether non-consideration of request to the Division for separate representative for protected person was procedurally unfair – Whether deferring its hearing and decision in relation to continuing the financial management order led to error – Whether decision in relation to guardianship order failed to take account of conflicts of interest – Adequacy of reasons – Appeal dismissed |
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Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210
Consumer & Commercial Division - Commercial
Judgment of: P Durack SC; J McAteer, Senior MembersCatchwords: Appeal – retail lease – termination by re-entry – default in payment of increased rent under rent review determination – whether demand for rent required – validity of notices given – new points on appeal of alleged conversion of tenant’s property and unconscionable conduct not allowed - no error of law |
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Tsallas v Pererra [2016] NSWCATAP 211
Consumer & Commercial Division - General
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; K Rosser, Senior Member Catchwords: APPEAL – Absence of official record of Tribunal decision – appeal dismissed |
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Chapman v McLaughin [2016] NSWCATAP 212
Consumer & Commercial Division - Motor vehicles
Judgment of: S Westgarth, Deputy President; A Boxall, Senior Member Catchwords: Leave to appeal – Clause 12, Schedule 4 – Rejection of fresh evidence |
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ZCP v ZCQ [2016] NSWCATAP 213
Guardianship Division - Guardianship order, Financial management order
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; R Deutsch, Senior Member (Legal); B McPhee, Senior Member (Professional)Catchwords: GUARDIANSHIP – Continuation of guardianship order – Addition of financial management order – Appeal by primary carer against those orders and appointments made – relevant considerations – procedural fairness – duration of orders – appeal dismissed |
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ZBT v ZBU [2016] NSWCATAP 214
Guardianship Division - Financial management order
Judgment of: K P O’Connor, AM, ADCJ, Deputy President, Appeals; Dr J Lucy, Senior Member;I Beale, Professional MemberCatchwords: GUARDIANSHIP - Appointment of NSW Trustee and Guardian as financial manager of protected person’s estate – Appeal by son, the appointed Guardian – supported by separate representative – whether Tribunal failed to consider relevant considerations – whether it failed first to give consideration to the appellant’s suitability as financial manager before deciding to appoint the NSW Trustee and Guardian – no errors of law – leave to extend appeal to other grounds – appeal dismissed |
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Pusell v NSW Land and Housing Corporation [2016] NSWCATAP 215
Consumer & Commercial Division - Social housing
Judgment of: A P Coleman SC; J Kearney, Senior MembersCatchwords: SOCIAL HOUSING: discretionary matters s 154E Residential Tenancies Act; factual errors; discretion miscarried. APPEAL: new evidence |
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Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216
Consumer & Commercial Division - Residential parks
Judgment of: Wright J, President; R Seiden SC, Principal Member; R Titterton, Senior Member Catchwords: RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility |
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Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Cowdroy ADCJ, Principal MemberCatchwords: PRACTICE AND PROCEDURE – application to adduce new evidence on appeal – whether such evidence was likely to produce a different result – consideration of conduct of the proceedings before the Tribunal – application refused |
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S & G Homes Pty Ltd t/as Pavilion Homes v Owen (No.2) [2016] NSWCATAP 218
Consumer & Commercial Division - Home building
Judgment of: P R Callaghan SC, Principal Member; D A C Robertson, Senior Member Catchwords: APPEAL - APPLICATION FOR LEAVE TO APPEAL – Civil and Administrative Tribunal – remission of jurisdictional issue by Appeal Panel – interlocutory directions – case management - decision on the papers – fairness |
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