NCAT Appeal Panel Decisions Digest Issue 1 of 2026 |
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 January 2026: |
Patruno v Ford Motor Company [2026] NSWCATAP 6: An Appeal Panel upheld an appeal from the Consumer and Commercial Division of NCAT, finding that there was a constructive failure to exercise jurisdiction because NCAT did not assess all of the mandatory considerations under s 54(3) of the Australian Consumer Law (ACL). The appellant claimed that persistent oil degradation issues meant his vehicle was not of acceptable quality under s 54 ACL. NCAT rejected the claim. However, the Panel concluded that NCAT failed to resolve the s 54 breach question by not making the required material findings under s 54(3). The matter was remitted to the Tribunal to be reconsidered according to law.
|
Fathulla v Mansell [2026] NSWCATAP 8: In an appeal from the Consumer and Commercial Division of NCAT, the appellant (a tenant) argued that NCAT’s decision did not properly consider her claim for a rent reduction under s 44 of the Residential Tenancies Act 2010 (NSW) (RT Act). An Appeal Panel allowed the appeal, concluding that NCAT made an insufficient attempt to consider the s 44 claim. The Tribunal merely stated that the tenant’s failure to give evidence of the amount of rent paid made it “difficult” for the Tribunal to assess the appropriateness of a rent reduction. At no point was s 44(1)(b) of the RT Act assessed in respect of the water ingress issues which were central to the dispute. Such a failure to properly deal with the s 44 claim was an error on a question of law, amounting to a constructive failure to exercise jurisdiction. The matter was remitted to the Tribunal.
|
Purdy v Link Wentworth Housing [2026] NSWCATAP 20: An Appeal Panel upheld an appeal from the Consumer and Commercial Division of NCAT on the basis that NCAT had made an error on a question of law by failing to afford the appellant (a tenant) procedural fairness. NCAT awarded the tenant $160 for an unpaid invoice but dismissed the balance of his claims. The Panel concluded that NCAT did not meet its procedural fairness obligations because it relied on previous NCAT orders and decisions but never explained their relevance or gave the appellant an opportunity to make relevant submissions. This failure, as well as the inadequacy of the reasons more broadly, meant the threshold of materiality required for breach of procedural fairness was met. The matter was remitted for reconsideration to a differently constituted Tribunal.
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Does a failure to individually consider the “mandatory considerations” under s 54(3) of the ACL amount to a failure to give adequate reasons? |
Patruno v Ford Motor Company [2026] NSWCATAP 6
Appeal from the Consumer and Commercial Division G Burton SC, Senior Member; N Kennedy, Senior Member
In sum: This internal appeal from the Consumer and Commercial Division of NCAT considered whether NCAT’s analysis (or lack thereof) of the mandatory considerations under s 54(3) ACL resulted in a constructive failure to exercise jurisdiction. The appellant had argued that his vehicle was not of acceptable quality under s 54 ACL due to oil degradation issues, and appealed NCAT’s decision on the basis that it did not give adequate reasons for dismissing his application.
Facts: The appellant sought a refund of $84,980 for a used car which was manufactured by the first respondent (Ford Motor Company) and purchased from the second respondent (Kloster Ford). The appellant alleged the vehicle was not of acceptable quality under s 54 ACL due to a “persistent oil degradation issue” and that this breach constituted a “major failure” under s 260 ACL because the vehicle lost power without warning when towing. In the appeal, the appellant also sought to introduce new materials which were not before NCAT in the original proceedings. These included a statement by the appellant and an expert report which, the appellant argued, demonstrated that the persistent fault remained.
NCAT recognised that the oil degradation was a symptom of a problem but that it was not a “defect” because firstly, the Intelligent Oil Life Monitoring (IOLM) system is designed to have increased services if oil is degrading, and secondly, the appellant was driving it in severe conditions (Sydney traffic). The Tribunal indicated that oil degradation itself does not constitute an inherent defect because there is a credible alternative (increased services).
Held (allowing the appeal):
(i) An Appeal Panel determined that the expert report detailing the condition of the vehicle was “significant new evidence” which was not reasonably available at the time of the primary hearing. However, the Panel found that the statement and annexures could not be classified as “significant new evidence” because the appellant had the opportunity to present these materials before the hearing.
(ii) NCAT’s written reasons were silent on both why the respondent’s submissions regarding a “credible alternative” were preferred to the appellant’s, and on the appellant’s submission that increased vehicle services show the vehicle is unfit for purpose. As such, NCAT did not properly address the appellant’s submission that the vehicle was unfit for purpose.
(iii) Additionally, the Tribunal did not engage individually with the elements of s 54(2) or (3) of the ACL and gave limited consideration to the principles it outlined at [12] (for example, applying the reasonable consumer test to the factors under s 54(3)(a)-(e)). The elements of s 54(3), which are “mandatory considerations” when establishing whether good are of acceptable quality, were not discussed in “any coherent form”. The reasons therefore failed to make material findings of fact in respect of the mandatory considerations.
(iv) The failure to address mandatory considerations or to make necessary material findings meant, according to the Panel, that NCAT failed to resolve the s 54 breach question and resulted in a constructive failure to exercise jurisdiction and an error on a question of law. |
2. Was there a constructive failure to exercise jurisdiction under s 44(1)(b) as a result of NCAT failing to assess breach in respect of the water ingress issues alleged by the tenant? |
Fathulla v Mansell [2026] NSWCATAP 8
Appeal from the Consumer and Commercial Division G Sarginson, Deputy President
In sum: An Appeal Panel allowed an appeal by a tenant in the Consumer and Commercial Division, on the basis that NCAT made an insufficient attempt to consider the tenant’s claim under s 44 of the Residential Tenancies Act 2010 (NSW) (RT Act). The Panel concluded that at no point was s 44(1)(b) of the RT Act assessed in respect of the water ingress issues which were at the centre of the dispute. Such a failure to properly deal with the s 44 claim was an error on a question of law, amounting to a constructive failure to exercise jurisdiction.
Facts: In October 2022, the appellant and respondent entered into a residential tenancy agreement. In May 2025, the appellant sought various orders, including a rent reduction under s 44(1)(b) of the RT Act based on the landlord’s failure to repair water leaks in the premises. The tenant claimed $200 per week for loss of use of the lounge room and adjacent bedroom (from February 2024) as well as an additional $50 per week from 29 April 2025 when the light fitting exploded (until the full lighting is installed). Additionally, she claimed $4,000 for “distress and disruption of peaceful enjoyment of the premises”.
Property inspection reports noted that there was “evidence of dampness/excessive moisture/moisture stains in the walls” as well as “extensive water damage to various areas of ceiling and timber beams”. NCAT accepted that the landlord had breached his duty to keep the premises in a reasonable state of repair under s 63 of the RT Act (ordered $800 compensation), and that he made unreasonable noise and sent inappropriate letters to the tenant which breached the tenant’s right to quiet enjoyment under s 50(2) of the RT Act (ordered $1,200 compensation). However, NCAT dismissed the tenant’s rent reduction claim.
Held (allowing the appeal):
(i) NCAT’s broad reference to the tenant failing to adequately “substantiate” her claim under s 44(1)(b) of the RT Act (a result of the tenant’s failure to specify how much rent she was paying) was “manifestly different to the landlord specifically identifying in the Points of Defence that the tenant had failed to plead the amount of rent payable”. The Panel concluded that NCAT’s finding that it was “difficult” to determine the reduction without knowing this amount, was not the same as making a finding that the tenant did not satisfy the burden of proof to be awarded a rent reduction.
(ii) As a result, the tenant established a constructive failure to exercise jurisdiction under s 44(1)(b) which is an error on a question of law. While NCAT did refer to a “rent reduction” claim in its reasons, in reality it only briefly noted that there was a difficulty in calculating the reduction and then went on to consider s 43 (which it deemed inapplicable). As such, NCAT did not consider a material issue for determination (the s 44(1)(b) claim), resulting in a constructive failure to exercise jurisdiction
(iii) NCAT did not state that the $1,200 compensation given under s 187(1)(d) due to the state of repair of the premises, included any amount which was awarded as a rent reduction. The Panel concluded that had NCAT considered the tenant’s claim under s 44(1)(b) of the RT Act as well as the claim under s 187(1)(d) of the RT Act, there was a “significant possibility” that NCAT would have awarded a separate amount under s 44(1)(b).
(iv) The Panel also noted that even if NCAT had dealt with the tenant’s claim as an error of mixed fact and law requiring leave to appeal, leave to appeal would have been granted. The Panel would have been satisfied that the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable.
(v) Despite having the power to do so, NCAT did not ask the parties what the amount of rent payable was. An Appeal Panel concluded this was “unusual” given the appellant was a self-represented litigant and while this did not deny the tenant procedural fairness, it was relevant to whether the decision was fair and equitable (and whether leave would be granted to appeal). |
3. Did NCAT make an error on a question of law by either being affected by bias, or failing to afford the appellant procedural fairness? |
Purdy v Link Wentworth Housing [2026] NSWCATAP 20
Appeal from the Consumer and Commercial Division D Ziegler, Senior Member; D Goldman, Senior Member
In sum: A tenant appealed a decision from the Consumer and Commercial Division of NCAT, in which he was awarded just $160 compensation. An Appeal Panel upheld the appeal and found that NCAT had made an error on a question of law by failing to afford the appellant procedural fairness. This was based on the Tribunal’s failure to give the appellant an opportunity to make relevant representations. This error was material to the outcome because NCAT did not consider the evidence on key contentions made by the appellant. The matter was remitted for reconsideration to a differently constituted Tribunal.
Facts: Mr Purdy (the appellant) and Link Wentworth Housing (the respondent) were parties to a social housing tenancy agreement. Mr Purdy sought orders for a range of repairs to be carried out on the rented premises, as well as orders for compensation and a rent reduction. NCAT ordered the landlord to pay Mr Purdy $160 compensation for an unpaid invoice, but dismissed the remainder of his claims. In an attempt to seek a rent reduction, Mr Purdy’s claims focused on the premises’ alleged state of disrepair.
The Panel determined that there were two grounds of appeal: firstly, whether the Tribunal Member was affected by actual or apprehended bias; and secondly, whether there was a failure to afford procedural fairness.
Held (allowing the appeal):
(i) Actual bias could not be established because there was no material before the Panel which established that NCAT prejudged the matter or closed its mind to any argument in support of Mr Purdy’s position. Additionally, the test for apprehended bias at the hearing could not be satisfied because the Panel did not have access to a recording or typed transcript from the hearing so could not assess what occurred.
(ii) The appellant also claimed bias in NCAT’s reasons, but the Panel concluded that a hypothetical fair-minded observer would not “be so sceptical of the Tribunal Member’s reasons as to apprehend that such a statement, whilst inadequately explained, might mean that the Tribunal Member might not have brought an impartial mind to the determination of the merits of the application”.
(iii) The issue regarding procedural fairness arose from NCAT’s conclusion that the appellant had not made out a case for a rent reduction or compensation and that “previous NCAT decision and orders had provided compensation to him for various items”. However, no evidence of these decisions or orders were given to the Tribunal, nor were the parties given an opportunity to make submissions about them. The Panel, therefore, could not be satisfied that the appellant was afforded procedural fairness.
(iv) When considering the materiality of this failure the Panel explained that it was unclear why NCAT dismissed eight of the appellant’s nine claims. For example, NCAT accepted that there was a faulty antenna, a broken lock, withdrawn access to an external bathroom, and yet it did not explain why claims on these bases were refused. NCAT also did not make any findings of fact regarding the behaviour of the appellant’s neighbours.
(v) The Panel therefore concluded that the absence of procedural fairness was material to the outcome as it could not be satisfied that a properly conducted application of the rules of natural justice would have inevitably produced the same result. This was because firstly, the relevance of previous NCAT decisions was not explained, and secondly, because NCAT’s reasoning process was not clear. |
|
|
|
|
Kim v O’Hea [2026] NSWCATAP 2 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – notice to terminate declared retaliatory – s 115 Residential Tenancies Act 2010 (NSW) – notice otherwise invalid – fresh notice issued and fresh Tribunal proceedings – whether appeal has any practical purpose |
O’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; S De Jersey, Principal Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – habitability of premises – repair of premises – scope of duty – modification of premises to accommodate disabilities of tenant – scope of remedial orders – applicable principles |
|
Patruno v Ford Motor Company [2026] NSWCATAP 6 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior Member; N Kennedy, Senior Member Catchwords: APPEALS — right of appeal — scope of right — error of law – Error on a question of law established |
Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; R C Titterton OAM, Senior Member Catchwords: CIVIL PROCEDURE - hearings – adjournments – grounds for adjournment – medical condition of representative of party – sufficiency of evidence – personal circumstances of representative of party – recent illness of mother - discretion to adjourn – applicable principles – whether refusal to adjourn a denial of procedural fairness |
Fathulla v Mansell [2026] NSWCATAP 8 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) – constructive failure to exercise jurisdiction |
Brazel v Sydney Water Corporation [2026] NSWCATAP 9 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; P H Molony, Senior Member Catchwords: APPEAL – denial of procedural fairness – interventions from bench preventing party from presenting their case – requirement for materiality – adequacy of reasons FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009 – information subject to a conclusive overriding public interest against disclosure because it is subject to non-disclosure order under s 64 of the Civil and Administrative Tribunal Act 2013 – legal professional privilege – meaning of “government information” |
|
Lemba v Nguyen [2026] NSWCATAP 11 Appeal from the Consumer and Commercial Division Decision of: S De Jersey, Principal Member Catchwords: LEASES & TENANCIES – Residential Tenancies Act 2010 (NSW) - failure to determine tenant’s claims with the landlord’s termination application when no application fee had been paid and application not lodged on standard form |
Karpinski v The Owners - Strata Plan No 1731 [2026] NSWCATAP 12 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed |
Hallmann v Southern Cross University [2026] NSWCATAP 13 Appeal from the Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – dismissal of the appeal because of the failure of the appellant to appear - no hearing on the merits – costs application granted |
Ushta Pty Ltd atf The AVVM Trust v Babayan [2026] NSWCATAP 14 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; G K Burton SC, Senior Member Catchwords: REAL PROPERTY – LANDLORD and TENANT – RETAIL TENANCY – COVENANTS - liability of original guarantor for obligations after transfer of lease - Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 GUARANTEE and INDEMNITY - liability of original guarantor for obligations after transfer of lease – Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 EQUITY – assignments at law – signature and notice requirements - Conveyancing Act 1919 (NSW) s 12 |
Sydney Roof Construction Pty Ltd v Varga [2026] NSWCATAP 15 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; R C Titterton AM, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for defective remediation works done pursuant to consent order. |
Huang v Champion Homes Sales Pty Ltd (No 2) [2026] NSWCATAP 16 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – costs of appeal ─ counsel’s fees claimed by self-represented party ─ whether those costs should be allowed ─ costs claimed for transcript obtained for the proceedings appealed ─ exercise of discretion to order lump sum |
Hodgson v Shaw (No 2) [2026] NSWCATAP 17 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; Dr K M George, Senior Member Catchwords: COSTS – jurisdiction – application for costs misconceived |
Zhen v Yan [2026] NSWCATAP 18 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; D Ziegler, Senior Member Catchwords: LANDLORD and TENANT- residential tenancy -termination of periodic tenancy by notice - termination order required under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA) subject to power under s115 of the RTA to refuse to make a termination order on grounds that the application for a termination order is retaliatory - earlier Tribunal decision that the notice for termination was not retaliatory - elapse of time between termination notice and application for a termination order - whether change in motivation for pursuing a termination order such that it was retaliatory - discretion in the exercise of powers under s 115 - breakdown of relationship between landlord and tenant - tenant evicted under warrant for possession lawfully issued by the landlord - even if a reason for pursuit of termination order was retaliatory whether the Tribunal would not refuse to order termination. APPEAL - decision of the Tribunal to make a termination order was affected by procedural unfairness - decision of the Appeal Panel to conduct a new hearing pursuant to s 80 (3) (b) of the Civil and Administrative Tribunal Act 2013 (NSW). |
Togaru v The Owners- Strata Plan No.90193 [2026] NSWCATAP 19 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; A Bell SC, Senior Member Catchwords: APPEAL – Strata Title-Strata Schemes Management Act -compensation pursuant to section 106 -whether significant new evidence has arisen COSTS- Costs may not be awarded in respect of amounts payable by a party to a non-lawyer which are not legal costs or disbursements and which do not involve the provision of legal services. |
Purdy v Link Wentworth Housing [2026] NSWCATAP 20 Appeal from the Consumer and Commercial Division Decision of: D Ziegler, Senior Member; D Goldman, Senior Member Catchwords: APPEAL – whether Tribunal member was affected by actual or apprehended bias – whether there was a failure to afford procedural fairness – adequacy of reasons. |
Schwedler v Secretary, Department of Health [2026] NSWCATAP 21 Appeal from the Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member; K Robinson, Principal Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Further evidence — Power to receive further evidence – Application dismissed APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Bias - No bias APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Application to amend complaint – Application dismissed EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Grounds — Disability discrimination - Whether actions taken by management constituted disability discrimination |
Donato v Mehta [2026] NSWCATAP 22 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior member; H Woods, Senior Member Catchwords: APPEALS — Leave to appeal — Principles governing |
|
|
Vulic v Apostolovski trading as Kitchens & Cabinets by Apples [2026] NSWCATAP 25 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior Member; J Redfern PSM, Senior Member Catchwords: BUILDING and CONSTRUCTION – HOME BUILDING – breaches of Home Building Act by builder – repudiation by homeowner – no error on question of law or miscarriage of justice – findings of fact open on the evidence |
|
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. |
