NCAT Appeal Panel Decisions Digest Issue 11 of 2025 |
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 contains links to all the Appeal Panel decisions published in November 2025, as well as summaries of the following cases. |
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Karelia v Transport for New South Wales [2025] NSWCATAP 293: An Appeal Panel dismissed appeals from two decisions of the Occupational Division in 2016 and 2017 that affirmed the Roads and Maritime Services decisions to (i) cancel the appellant's authority to drive a taxi-cab and (ii) refuse an application for a new taxi authority. Under a new statutory regime, the decisions mean that the appellant is not eligible to drive a taxi in NSW. The appellant sought to change the outcome of those decisions, which would then allow him to drive a taxi. The Appeal Panel was not persuaded by the explanation for the extraordinary delay and refused to grant leave to file the appeals out of time. Each appeal was also found to be misconceived and without merit and the appellant was ordered to pay the respondent’s costs.
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Cawthorne v NSW Land and Housing Corporation [2025] NSWCATAP 297: In an application for consent orders, an Appeal Panel noted that it, like a court, is not bound to make consent orders. Despite the appeal application being lodged out of time, the proposed consent orders did not contain an order for the extension of time to correct the irregularity, and so the orders were not the proper orders to be made. The Appeal Panel was also not satisfied that it had the power to make the orders proposed, finding that "[i]t is contradiction to dismiss an appeal, and to set aside the orders under appeal and make another decision in substitution for them". The Appeal Panel also considered the principle of consistency in Appeal Panel decisions as explained in Australian Postal Corporation v Williams [2024] NSWCATAP 168 at [27]-[32]. The application for consent orders was dismissed.
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1. Did NCAT misapply s 17(1)(c) of the Guardianship Act 1987 (NSW) by failing to assess whether the appellant was currently able to exercise the functions in the proposed guardianship order? |
YQJ v Public Guardian [2025] NSWCATAP 301
A Britton, Deputy President; L Organ, Senior Member; Dr B McPhee, Senior Member
In sum: An Appeal Panel allowed an appeal from the Guardianship Division in part, finding that NCAT misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) in its failure to consider whether the appellant is able to exercise the functions conferred or imposed by the proposed guardianship order, instead only considering his previous capacity. This error was not found to be material to the decision under appeal because NCAT was not satisfied that there was no undue conflict between the interests (particularly, the financial interests) of the appellant and the subject person (the grandmother) under s 17(1)(b).
Facts: The grandmother had been diagnosed with dementia and end stage chronic obstructive pulmonary disease. Her grandson, the appellant, has been living with her since he was six years old and until 2023, cared for her in her home. In 2023 the NSW Ageing and Disability Commissioner received several reports that the grandmother was subject to neglect. In January 2024, the Guardianship Division of NCAT appointed the NSW Public Guardian as guardian for the grandmother. The decision under appeal is NCAT’s decision in April 2025 to renew the initial guardianship order.
At first instance the appellant submitted that it would be in the grandmother's best interests to return home to live with him. He tendered photographs of the medical equipment he had obtained to facilitate her return, including a wheelchair, hospital bed and oxygen machine. At the request of the Public Guardian, a geriatrician provided an opinion that the grandmother has high care needs, which could not be supported at home. The Public Guardian submitted, and NCAT agreed, that a guardianship order regarding accommodation functions was required. However, NCAT did not consider that it was necessary to give the appointed guardian authority to consent to medical and dental treatment as the appellant was deemed to be her “person responsible” and there was no evidence that he had made bad decisions in relation to his grandmother’s health.
In making the guardianship order and appointing the Public Guardian, NCAT considered the reasons for making the initial guardianship order, including that the appellant had previously been unable to give paramount consideration to the best interests of his grandmother and among other things, did not pay any money to live in his grandmother’s house. In considering whether there was an undue conflict of interest, NCAT noted that the grandmother’s home may have to be sold to fund her accommodation and that the appellant had said that he would not be able to survive renting elsewhere on his Jobseeker allowance. NCAT concluded that the appellant was not suitable to be appointed as guardian due to his inability to promote the grandmother's welfare in the past, and his financial conflict of interest in maintaining his housing.
Held (Allowing the appeal in part and affirming the decision to appoint the Public Guardian):
(i) Section 17(1)(c) of the Guardianship Act requires NCAT to consider whether the appellant is currently able to exercise the functions conferred by the proposed guardianship order (YLU v Public Guardian [2025] NSWCATAP 81 at [49]) and whether the appellant is able to make those decisions in a manner consistent with this statutory duty imposed by s 4 (W v G (2003) 59 NSWLR 220 at [25]). In its reasons, NCAT found that the appellant was not suitable to be appointed “due to his inability to promote [the grandmother’s] welfare in the past”. There is nothing in the reasons that engaged with the appellant’s claim that he has taken steps that make him suitable. NCAT was under no obligation to accept his submission, however NCAT was required to engage with those claims and evaluate whether the appellant was able to discharge the functions conferred by the renewed order at the time that it was made. The Appeal Panel held that “[b]y failing to do so and focussing solely on [the appellant’s] past conduct, the Tribunal misapplied s 17(1)(c)”.
(ii) The Appeal Panel rejected the other grounds of appeal that raised questions of law. In particular, the appellant had alleged that his sister was “verbally abused” and that he and his sister were not given an opportunity to speak at the first instance hearing, such that they were denied procedural fairness. It was noted that the first instance reasons contained several references to the appellant’s submissions made in the course of the hearing and “more to the point”, the appellant was directed to provide a transcript and sound recording of the hearing at first instance, which he did not do. The Appeal Panel rejected these grounds of appeal on the basis that the appellant’s subjective recollection of what occurred at the hearing was insufficient to establish his claim.
(iii) The appellant also contended that NCAT had made several factual errors which he said warranted the exercise of the discretion to grant leave to appeal. The appeal panel found that the conclusions reached by NCAT were not clearly wrong or unreasonably arrived at. The appellant did not identify a sound basis to warrant leave to appeal nor did he raise any issue of general importance or a matter of principle. The Appeal Panel declined to exercise the discretion to give leave to appeal.
(iv) The Appeal Panel held that NCAT’s error in applying s 17(1)(c) was not material to the decision under appeal because NCAT also found that there was an undue financial conflict under s 17(1)(b). Therefore, the appellant could not have been appointed as guardian regardless. The decision to reappoint the Public Guardian was affirmed. |
2. Is the harsh operation of new legislation a reason for the Appeal Panel to grant an extraordinary extension of time to appeal? |
Karelia v Transport for New South Wales [2025] NSWCATAP 293
D Robertson, Principal Member; J Sullivan, Senior Member
In sum: An Appeal Panel refused a grant of leave to extend the time to file an appeal in respect of two decisions made in 2016 and 2017 regarding the appellant’s authority to drive a taxi. The appeals were filed many years out of time and the main argument on appeal was that the decisions made the appellant ineligible to obtain a taxi drivers licence under the subsequent legislative scheme in NSW. The Appeal Panel held that there was no satisfactory explanation for the extraordinary delay. The appeal essentially sought to “re-run each case”, did not raise a question of law, nor did it assert that there was any error in the original decisions. The Appeal Panel dismissed the appeal, holding that the appeal lacked merit and there was no warrant to grant the extension of time for filing of the appeal.
Facts: The Occupational Division of NCAT made two decisions in 2016 and 2017 regarding the appellant’s authority to drive a taxi. The 2016 decision affirmed the respondent’s decision to cancel the appellant’s taxi authority as the correct and preferable one. The decision was made in consideration of the appellant’s 11 driving offences and a further 8 offences for which he signed false statutory declarations nominating a driver other than himself. NCAT found that because of “the severity of his actions in swearing eight false declarations in order to escape responsibility for his traffic offences, in addition to his poor driving record, the Tribunal cannot be satisfied that Mr Karelia is, at this stage, a fit and proper person to hold a taxi driver’s authority” and that his actions were “sufficiently serious to warrant the cancellation of his taxi-cab driver authority.” The 2017 decision refused the appellant’s application for a new taxi authority.
The regulation of taxis in New South Wales changed on 1 November 2017 and the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) (PTPT Act) and the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) (PTPT Regulation) now apply. Relevantly, s 52(2) of the PTPT Act says that the Commissioner must not grant an application for a taxi licence unless satisfied that the applicant meets any requirements specified by the regulations. The Appeal Panel accepted that under cl 25(2) of the PTPT Regulation, the appellant, because his taxi drivers licence was cancelled, can never become eligible to drive a taxi in NSW. Despite being ineligible, the appellant was issued with a Driver ID under the new statutory regime in 2018 or 2019 and had since driven taxis. In March 2025, the appellant was advised that he was not eligible to drive. The appellant’s notice of appeal was filed on 30 April 2025. The appellant’s main argument on appeal was that both decisions made the appellant ineligible to get a taxi driver licence under the subsequent legislative scheme in NSW.
Held (Refusing to extend the time to appeal and dismissing the appeal):
(i) The Appeal Panel considered that the delays of eight and nine years in filing the appeals were “extraordinary”. The delay arose because the appellant did not predict the consequences of the decisions in the event that the laws changed. However, the relevant regulations came into effect shortly after the 2017 decision. The appellant says that he would have "tried harder" in the 2016 and 2017 proceedings if he had known that these consequences would deprive him of the right to drive a taxi under the new laws. The Appeal Panel found that the appellant was given a full opportunity to present his best case the first time and noted that “an appeal is not a forum to simply re-run the case, nor indeed to "try harder" with the benefit of hindsight” (at [44]). The Appeal Panel held that the appeals were “without merit” and “misconceived”, and refused to exercise the discretion to extend the time to appeal under s 41 of the Civil and Administrative Act 2013 (NSW) (NCAT Act).
(ii) The respondent sought costs under s 60(3)(c), (e) and (g) of the NCAT Act, submitting that there were special circumstances warranting an award of costs in their favour. The Appeal Panel agreed that the appellant’s claims “had no tenable basis and were misconceived” and that the grounds of appeal “could not reasonably be made and which were put without any proper basis”. It was also noted that “[t]he fact that new legislation and/or regulations operate harshly cannot, on any view, be grounds for an appeal”. The extreme delay, the cost borne by the respondent in obtaining the bundle of evidence from the original proceedings and the appellant’s lack of legal expertise, were all considered as relevant factors in the Appeal Panel finding that, on balance, special circumstances exist that warrant the exercise of discretion to depart from the usual costs rule in s 60(1) of the NCAT Act. The appellant was ordered to pay the respondent’s costs. |
3. What are the principles applied when the Appeal Panel is asked to make consent orders? |
Cawthorne v NSW Land and Housing Corporation [2025] NSWCATAP 297
G Blake AM SC, Principal Member
In sum: An Appeal Panel considered an application from the parties to make consent orders that set aside the decision of NCAT, substitute the parties’ proposed orders and dismiss the appeal. Despite the appeal being filed out of time, the proposed orders did include an extension of time for lodging the notice of appeal. Even if the irregularity was addressed, the Appeal Panel did not have the power to make the proposed orders. The Appeal Panel held that the proposed orders were not the proper orders to be made. The principle, where an Appeal Panel is asked to make consent orders, is whether the Appeal Panel is satisfied of the existence of arguable appealable error and if so, it may make orders in the exercise of the functions conferred on NCAT at first instance. The application was dismissed.
Facts: In January 2014, Ms Cawthorne (the appellant) and the NSW Land and Housing Corporation (the respondent) entered into a social housing tenancy agreement in respect of a premises in Orange, NSW. In July 2024 the respondent lodged an application with NCAT for various remedies. In December 2024, by written notice, the respondent declared that the tenancy agreement is subject to a further fixed term of five years, ending in December 2029. On 25 June 2025, the Consumer and Commercial Division of NCAT made a decision that resulted in the termination of the lease by reason of a failure to keep the premises reasonably clean (the June 2025 orders).
The appellant lodged an appeal on 6 August 2025, which included an explanation for seeking an extension of time to appeal outside the 14 day limit. The respondent’s reply stated that there were no errors on a question of law, however, did not object to the extension of time. Procedural directions were made, including listing the appeal for a hearing in December 2025. On 17 October 2025, the appellant’s solicitor sent an email to the Appeal Registry attaching consent orders dated 17 October 2025 signed by herself and the respondent’s solicitor (the original consent orders). On 21 October 2025, the Appeal Panel declined to make the proposed consent orders and in a statement of reasons, said that consideration would be given to dispensing with the hearing and making the proposed orders if the parties lodged submissions and evidence that addressed the issue of whether the proposed orders could be made. On 24 October 2025, the appellant provided amended proposed consent orders (the amended consent orders).
Held (Dismissing the application to make the proposed amended consent orders):
(i) In considering whether the amended consent orders should be made, the Appeal Panel found that, like a court, it is not bound to make consent orders (see [26]). The amended consent orders did not contain an extension of time to lodge the notice of appeal, which had been previously provided in the original consent orders. In the absence of an order correcting the irregularity of the notice of appeal not having been lodged within time, the Appeal Panel decided that the amended consent orders were not proper orders that could be made.
(ii) The amended consent orders were consequential on the appeal being allowed. On the proper construction of the key statutory provisions (see [5]-[9]), even if the above irregularity was corrected, the Appeal Panel was not satisfied it has power to set aside orders and make another decision in substitution for them where an appeal is dismissed under s 81(1)(a) of the NCAT Act. The Appeal Panel held that it is a “contradiction to dismiss an appeal, and to set aside the orders under appeal and make another decision in substitution for them. There is no indication in the NCAT Act that the powers in ss 32(2)(b) and 81(2) may be exercised whether or not there was error at first instance”. In “considering whether to make consent orders allowing an appeal… the principle that should be applied is that the Appeal Panel is satisfied of the existence of arguable appealable error”.
(iii) The Appeal Panel also considered the principle of consistency in Appeal Panel decisions as explained in Australian Postal Corporation v Williams [2024] NSWCATAP 168 at [27]-[32] with regard to following previous decisions. |
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Independent Liquor and Gaming Authority v Burwood RSL Club Ltd [2025] NSWCATAP 279 Appeal from the Administrative and Equal Opportunity Division Decision of: A Britton, Deputy President; G Blake AM SC, Principal Member Catchwords: ADMINISTRATIVE LAW — administrative review — approval to remove club licence to new premises –whether decision to impose conditions on licence is an administrative reviewable decision WORDS AND PHRASES — meaning of “in relation to” |
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Iteck Communication Pty Ltd v Tybray Pty Ltd [2025] NSWCATAP 281
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 |
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Baluri v The Owners – Strata Plan No 11258 (No 2) [2025] NSWCATAP 284 Appeal from the Consumer and Commercial Division
Decision of: G K Burton SC, Senior Member; M Tibbey, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property –alleged damage to lot property from alleged breach of duty – measure of damage to lot property when renovations occurred – whether relevant pipes were common property – Strata Schemes Management Act 2015 (NSW) s 106 – Strata Schemes Development Act 2015 (NSW) s 4 COSTS – application of ordinary costs rules – costs follow the event – ordinary basis |
Grbevska & Grbevski v Zac Homes Pty Ltd No 2 [2025] NSWCATAP 285 Appeal from the Consumer and Commercial Division
Decision of: S Westgarth, Deputy President; P H Molony, Senior Member Catchwords: Cost – rule 38A Civil and Administrative Rules 2014 (NSW) – costs follow the events – costs recoverable by self-represented litigant – fixed costs |
Airparts Australia Pty Ltd t/as Airparts Auto Trading Concept v Frontline Smash Repairs Pty Ltd [2025] NSWCATAP 286 Appeal from the Consumer and Commercial Division
Decision of: G K Burton SC, Senior Member; M Tyson, Senior Member Catchwords: CONSUMER LAW – consumer guarantees – supply of goods – alleged non-fitting tyre rims not fit for specified purpose and not matching description – alleged proxy purchasing service – alleged compliance in sourcing tyre rims with consumer instructions – service not supply of goods – service alleged to have been performed in accordance with instructions – Australian Consumer Law (NSW) ss 55, 56, 60 |
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Jiang v Earlcore Pty Ltd [2025] NSWCATAP 292 Appeal from the Consumer and Commercial Division
Decision of: R C Titterton OAM, Senior Member; Dr K George, Senior Member Catchwords: APPEALS – application for leave to appeal – no question of principle |
Karelia v Transport for New South Wales [2025] NSWCATAP 293 Appeal from the Occupational Division
Decision of: D Robertson, Principal Member; J Sullivan, Senior Member Catchwords: APPEALS — Procedure — Time limits — Extension of time – Extreme delay — Appellant seeking to file an appeal in 2025 against decisions published in 2016 and 2017 — Belated attempt to appeal due to change of legislation following the delivery of the decisions — Extension of time refused COSTS – Special circumstances — Extreme delay in lodging appeal award of costs — Appeal without substance and misconceived |
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Kimpton v Wu [2025] NSWCATAP 295 Appeal from the Consumer and Commercial Division
Decision of: Dr K M George, Senior Member; J Sullivan, Senior Member Catchwords: APPEAL – question of law – procedural fairness – adequacy of reasons – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) |
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Press v Bird [2025] NSWCATAP 298 Appeal from the Consumer and Commercial Division Decision of: G K Burton SC, Senior Member; J Redfern PSM, Senior Member Catchwords: REAL PROPERTY – LANDLORD and TENANT – RESIDENTIAL TENANCY – was the written agreement between the parties a residential tenancy agreement – limited Tribunal jurisdiction to make a declaration on that matter – Residential Tenancies Act 2010 (NSW) s 11 |
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Hawkins v Nassif [2025] NSWCATAP 300 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member Catchwords: APPEALS – question of law – denial of procedural fairness – where Tribunal failed to give reasons for refusing an adjournment of proceedings – where the order for rental arrears exceeded the power of the Tribunal |
YQJ v Public Guardian [2025] NSWCATAP 301 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; L Organ, Senior Member; Dr B McPhee, Senior Member Catchwords: GUARDIANSHIP — whether the Tribunal misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) — point in time Tribunal is required to form state of satisfaction about whether proposed guardian is able to exercise the functions conferred by the renewed guardianship order PROCEDURAL FAIRNESS — whether the Tribunal failed to give the appellant and his sister a reasonable opportunity to be heard PROCEDURAL FAIRNESS — actual and apprehended bias LEAVE TO APPEAL — principles governing exercise of discretion to give leave to appeal from an internally appealable decision under Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) |
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Upham v Kent Sydney Pty Ltd [2025] NSWCATAP 304 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – jurisdiction of Tribunal – service of Notice to Terminate by email |
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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. |
