| | NCAT Appeal Decisions Digest December 2018 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.
The following decisions were handed down during December 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - ZGW v ZGX [2018] NSWCATAP 297, concerning procedural fairness and whether the use of a “resolution process” under s 37 of the Civil and Administrative Tribunal Act 2013 (CAT Act) is mandatory.
- Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299, which considered the scope of the Tribunal’s power to make orders on a renewal application under Sch 4 cl 8 of the CAT Act.
- Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311, affirming the Tribunal’s power to transfer a matter to an appropriate Court where it does not have jurisdiction to hear the matter.
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| ZGW v ZGX [2018] NSWCATAP 297
Guardianship Division
A Britton, Principal Member; J Moir, Senior Member; J Le Breton, General Member
ZGX is a 90-year old who has dementia (the Subject Person). The Tribunal made a financial management order committing the management of ZGX’s estate to the NSW Trustee and Guardian. One of ZGX’s sons appealed that decision ([1], [13]).
On appeal, the appellant argued:
1) The Tribunal was bound by the Guardianship Act 1987 to take into account the views of the Subject Person in exercising its power to: a) treat the application for review of the Enduring Power of Attorney (EPoA) as an application for a financial management order; and b) in making such an order.
2) The Tribunal failed to afford the appellant a reasonable opportunity to present his case by: a) refusing to allow him to tender further material at the hearing; and b) permitting his brother to participate in the hearing.
3) The Tribunal contravened the “underlying principles” of the Civil and Administrative Tribunal Act 2013 (CAT Act) by not requiring the parties to use or attempt to use a “resolution process”.
4) There was no evidence for the Tribunal’s finding that the appellant borrowed $10,000 from the Subject Person to repay his credit card debt ([15]).
Held (allowing the appeal):
(i) Section 4 of the Guardianship Act creates a duty for persons exercising functions under that Act to consider the views of the Subject Person. The Powers of Attorney Act does not contain such a provision. Therefore, “while it is open to the Tribunal to have regard to the views of the Subject Person, the Tribunal is not bound to do so: ZBC v ZBD [2016] NSWCATAP 264 at [100]-[101] ([19]-[20]). In any event, the Tribunal considered the Subject Person’s views: ([21]).
(ii) Procedural fairness addresses questions of practical justice. The appellant did not suffer any practical injustice by the Tribunal refusing to permit him to tender further material given the nature of the material and his opportunity to speak to it. While the appellant was distressed in the presence of his brother at the hearing room, he participated fully. The appellant was not denied a reasonable opportunity to present his case and was not denied procedural fairness ([49]-[50], [57]).
(iii) Section 37 of the CAT Act confers on the Tribunal the power to use a resolution process, or to direct the parties to use a resolution process, but it is not bound to. The text, context and purpose of s 37 do not indicate that the word “may” should be construed in a way other than conferring a discretion ([62]).
(iv) There was no evidence for the Tribunal to find that the appellant had borrowed money from the Subject Person to pay his credit card. Such a finding is an error of law: ([76]).
The time for lodging the Notice of Appeal was extended ([81]-[85]). The appeal was allowed and the relevant decision remitted to the Guardianship Division for reconsideration ([92]).
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| Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299
Consumer and Commercial Division – Social Housing
G K Burton SC, Senior Member; J Kearney, Senior Member
The appellant is a long term tenant of social housing in NSW. The tenant applied to the Tribunal for orders: that the landlord complete repairs to the bathroom; the tenant be granted a rent free period; and the tenant be granted a further period of a 50% reduction in rent. These orders were granted ([1]-[2]). The tenant brought a renewal application alleging that the landlord had breached its repair obligations. The appellant sought orders that: the landlord immediately complete the repairs; the tenant be granted a rent free period; and compensation under s 187(1)(d) of the Residential Tenancies Act 2010 (RTA) ([3]-[4]). On the renewal application, the Tribunal reduced the discounted rent by a further 25% but dismissed the compensation claim as beyond jurisdiction ([6]).
On appeal, the tenant argued that the Tribunal erred in law, or in fact (in which case he sought leave to appeal) in not ordering the rent free period to extend until the works were completed. The grounds were that the Tribunal failed to take into account a relevant matter and took into account an irrelevant consideration. The tenant also submitted that the Tribunal erred in dismissing his compensation claim ([9]).
Held (allowing the appeal):
(i) The Tribunal erred in law by failing to take into account a relevant consideration, namely the factual continuity of the outstanding repair works. The Tribunal failed to justify the rent free period ceasing and a reduced rent period commencing, when there was no material change in circumstances ([21], [24]-[26]).
(ii) Alternatively, the Tribunal erred in law by taking into account an irrelevant consideration for the purposes of s 44 of the RTA in considering whether the tenant could use a neighbour’s bathroom or public toilets in the absence of the repairs. To consider such matters extraneous to the residential premises the subject of the proceedings:
“[W]ould subvert one of the purposes of s 44, which is to sanction lack of compliance by the landlord with its obligations, including of repair and provision of essential facilities like a bathroom and to provide premises fit for habitation, under the lease: see ss 44(1)(b), (3), (5)(c), (d), (e), 52(1). It would also subvert the focus on amenity of the residential premises in s 44(5)(e)” ([27], [29]-[30]).
The rent free period should run until the repair works were completed ([32]).
(iii) The Tribunal erred in law in finding that it lacked jurisdiction to hear the tenant’s compensation claim in the renewal application ([21]). Sch 4 cl 8 of the CAT Act should be interpreted broadly to allow the Tribunal to make orders including those that were not sought expressly at the time of the original application ([48]).
“In Vasudevan the Appeal Panel at [27] said the renewal power was analogous to the power that "a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract"” ([50]).
Section 187(1)(d) of the RTA provided a further basis on which the compensation claim in the renewal application could be determined ([58]).
(iv) If the Appeal Panel was mistaken in finding errors of law, leave to appeal on questions of fact is granted ([59]).
(v) Costs were awarded to the appellant for the primary hearing and appeal on the ordinary basis as agreed or assessed ([75]).
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| Wilson v Chan & Naylor; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2018] NSWCATAP 311
Consumer and Commercial Division – General
S Westgarth, Deputy President; R Perrignon, Senior Member
The appellant commenced proceedings in the Tribunal arguing that financial advice provided by the respondents was negligent and in breach of the Australian Consumer Law (ACL) for failure to comply with the Superannuation Industry (Supervision) Act (SIS Act) and the relevant regulation. The proceedings were transferred to the District Court because the claim exceeded the Tribunal’s jurisdictional limit. The quantum was amended and the claim returned to the Tribunal. On 20 June 2018, the Tribunal dismissed the application against the sixth respondent and ordered that the appellant was to pay the third, fourth and fifth respondents’ costs [5]. On 29 June 2018, the Tribunal dismissed the application against the first and second respondents [6]. The appellant appealed both decisions.
The appellant appealed the 20 June 2018 decision on the grounds that the Tribunal:
1) Denied the appellant procedural fairness;
2) Erred in seeking an agreement on costs in relation to the sixth respondent before the appellant had been able to consider limitation and jurisdictional issues;
3) Erred in granting leave for the third, fourth and fifth respondents to be legally represented and in awarding their costs;
4) Erred in finding that the Tribunal lacked jurisdiction, in not transferring the matter to a court, in deciding the application against the sixth respondent on the papers, and in factual findings ([29]).
The appellant appealed the 29 June 2018 decision on the grounds that the Tribunal:
1) Denied the appellant procedural fairness;
2) Erred in finding that it lacked jurisdiction, and in not transferring the proceedings to an appropriate court ([61]).
Held (dismissing the appeal):
(i) The appeals are dismissed in respect of the orders removing three respondents and the order that the appellant pay the sixth respondent’s costs. The appellant was not denied procedural fairness ([41],[46],[49]).
(ii) The appellant’s claims relate to the exercise of Federal jurisdiction and the Tribunal is not vested with power to determine that type of dispute. Therefore, it was not necessary to determine whether the 20 or 29 June 2018 decisions correctly considered s 79L of the FT Act ([27], [54], [70]). Accordingly, the matter (GEN 17/39611) was transferred to the Local Court of NSW, because it is a court able to determine the claim for damages the appellant seeks ([72]-[73]). (Note that the earlier transfer ordered by the District Court was not a nullity because the order was made by consent, was within the Court’s jurisdiction to transfer matters, and s 79L of the FT Act relates to the Tribunal’s jurisdiction to determine a consumer claim ([50])).
“In our view, the Tribunal may transfer proceedings before it to a Court notwithstanding that the Tribunal does not have jurisdiction to hear and determine the application” due to cl 6 Sch 4 of the CAT Act ([56]).
(iii) The appellant to pay the respondents’ appeal costs as agreed or assessed ([74]).
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| | | GM Holden Ltd v Scicluna Facade Design Pty Ltd [2018] NSWCATAP 292
Consumer and Commercial Division – Motor Vehicles
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior MemberCatchwords: CONTRACT LAW – Australian Consumer Law – consumer guarantees – finding of major failure – no expert evidence – no error of law. |
| Yang v Webster [2018] NSWCATAP 293
Consumer and Commercial Division – Tenancy
Decision of: G K Burton SC, Senior Member; D A C Robertson, Senior MemberCatchwords: LEASES AND TENANCIES – Residential Tenancies – liability of landlord and agent for loss of property consequent on open inspection – Residential Tenancies Act s 61(2) – onus of proof. |
| ZJN v Public Guardian [2018] NSWCATAP 294
Guardianship Division
Decision of: Member(s) Hennessy LCM, Deputy President; A Boxall, Senior Member; Dr B McPhee, Senior MemberCatchwords: GUARDIANSHIP – appeal – appeal on a question of law – new evidence – relevant considerations. |
| ZJN v Public Guardian (No 2) [2018] NSWCATAP 295
Guardianship Division
Decision of: Member(s) Hennessy LCM, Deputy President; A Boxall, Senior Member; Dr B McPhee, Senior Member
Catchwords: GUARDIANSHIP – appeal – appeal on a question of law – new evidence – relevant considerations.
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| Roberts v NSW Land and Housing Corporation [2018] NSWCATAP 296
Consumer and Commercial Division – Social Housing
Decision of: G K Burton SC, Senior Member; M Anderson, Senior Member Catchwords: Residential tenancy – social housing – alleged indirect discrimination on grounds of mental illness disability – no error of law – no basis for leave – basis for extending temporary stay of possession. |
| Quigg v O’Leary trading as Building Habitats [2018] NSWCATAP 298
Consumer and Commercial Division – Home Building
Decision of: K Rosser, Principal Member; D A C Robertson, Senior MemberCatchwords: BUILDING AND CONSTRUCTION – Home Building – owners contracted separately with builder, waterproofer and tiler – builder penetrated waterproofing while installing balustrade – waterproofer not called to undertake second stage waterproofing – responsibility of owners to arrange contractors – no error of law – decision not against the weight of evidence. |
| ZJA v ZJB [2018] NSWCATAP 300
Guardianship Division
Decision of: A Britton, Principal Member; J Kearney, Senior Member; P Foreman, General MemberCatchwords: PROCEDURAL FAIRNESS – hearing rule – no material to support claim appellant not given a reasonable opportunity to be heard. |
| Davenport v The Owners – Strata Plan 536; The Owners – Strata Plan 536 v Davenport [2018] NSWCATAP 301
Consumer and Commercial Division – Strata
Decision of: M Harrowell, Principal Member; J Kearney, Senior MemberCatchwords: STRATA SCHEMES – Common property – resolution to authorise work to alter common property – obligation to repair – s 106(3) of the Strata Schemes Management Act 2015 (NSW) – power to determine repairs and maintenance are inappropriate – circumstances in which demolition is authorised – unauthorised alterations. |
| Brian Burston & Associates Pty Ltd v Keyter [2018] NSWCATAP 302
Consumer and Commercial Division – General
Decision of: R L Hamilton SC, Senior Member; R Dubler SC, Senior MemberCatchwords: CONTRACTS – consumer law – repudiation of contract – copyright in architectural drawings – appeals – error of law – grant of leave to appeal. |
| Guo v The Owners Strata Plan No 70067 (No 2) [2018] NSWCATAP 303
Consumer and Commercial Division – Strata
Decision of: Professor Ian Bailey AM SC, Senior Member; G Sarginson, Senior MemberCatchwords: Appeal – Strata Schemes – Costs of the appeal – special circumstances. |
| Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 304
Consumer and Commercial Division – Home Building
Decision of: S Westgarth, Deputy President; G Curtin SC, Senior MemberCatchwords: Costs. |
| Maciejak v Szekely [2018] NSWCATAP 305
Consumer and Commercial Division – Home Building
Decision of: R C Titterton, Principal Member; D A C Robertson, Senior MemberCatchwords: APPEAL – Leave to appeal – decision against the weight of the evidence – no question of principle. |
| C Mares v M R Kirsten [2018] NSWCATAP 306
Consumer and Commercial Division – Home Building
Decision of: R L Hamilton SC, Senior Member; S Thode, Senior MemberCatchwords: APPEALS – interlocutory matter – leave questions – error of law – proceeding in absence of party. |
| Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307
Administrative and Equal Opportunity Division – GIPA and Privacy
Decision of: Hennessy LCM, Deputy President; Dr R Dubler SC, Senior MemberCatchwords: ADMINISTRATIVE LAW – appeal from decision under Government information (Public Access) Act 2009 – appeal from decision that police officers pay part of the costs of the NSW Police Force – where police officers applied for access to government information held by NSW Police Force – where Tribunal upheld decision not to provide access to the withheld information – whether Appeal Panel should deal with the appeal by way of a new hearing – whether Tribunal made an error of law or other error justifying setting aside the Tribunal’s decisions. |
| Botros v Trivett Automotive Retail Pty Ltd t/as Delo Subaru [2018] NSWCATAP 308
Consumer and Commercial Division – Motor Vehicles
Decision of: R Titterton, Principal Member; Dr J Lucy, Senior MemberCatchwords: APPEAL – leave to appeal – no question of principle. |
| Taylor v Joye [2018] NSWCATAP 309
Consumer and Commercial Division – Commercial
Decision of: R C Titterton, Principal Member; R L Hamilton SC, Senior Member Catchwords: APPEALS – Appeal from an ancillary decision finding that there was no jurisdiction – s 22 Dividing Fences Act 1991 – error of law – inadequate reasons – appeal allowed – rehearing by Appeal Panel – dispensation with oral hearing – extension of time to file Notice of Appeal. |
| Bullock v NSW Land and Housing Corporation [2018] NSWCATAP 310
Consumer and Commercial Division – Social Housing
Decision of: M Harrowell, Principal Member; F Corsaro SC, Senior Member Catchwords: LANDLORD AND TENANT – Breach of residential tenancy agreement – discretion to terminate – factual findings regarding likelihood of future breach against the weight of evidence – leave to appeal. |
| | DISCLAIMER: This publication has been prepared for information purposes only. The Appeal 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.
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