NCAT Appeal Panel Decisions Digest Issue 12 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 features summaries of the following Appeal Panel decisions handed down in December 2025: |
Hughes-Mason v SES Village Pty Ltd [2025] NSWCATAP 305: An Appeal Panel upheld an appeal from the Consumer and Commercial Division of NCAT, which had terminated the appellant’s (Ms Hughes-Mason’s) site agreement with a caravan park operator. The Tribunal incorrectly used non-compliance with NCAT orders as a sufficient basis on which to terminate the site agreement. The Panel concluded that, in effect, the Tribunal purported to recast s 129(2) of the Residential (Land Lease) Communities Act 2013 (NSW) by reference to NCAT orders, rather than whether Ms Hughes-Mason had “intentionally or recklessly” caused or permitted one of the consequences in s 129(2). The application for termination was dismissed, and consideration of the operator’s application to carry out works at the site was remitted to the Tribunal.
|
Williams v Wang [2025] NSWCATAP 314: An Appeal Panel allowed an appeal from the Consumer and Commercial Division of NCAT by tenants whose claim for a rent reduction under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act), and compensation under s 187(1) of the RT Act, had been dismissed. The Panel found that NCAT applied the wrong legal test when assessing whether the landlord had rectified the property’s mould issues. The Tribunal mistakenly focused on whether the landlord had taken ‘reasonable steps’ to repair the premises, rather than whether the landlord had put the premises into a reasonable state of repair within a reasonable time. The Panel remitted the matter to the Tribunal.
|
Lin v Westerman [2025] NSWCATAP 319: An Appeal Panel upheld the landlord’s appeal, finding that a decision by the Consumer and Commercial Division of NCAT had failed to establish any breach of the RT Act. The Tribunal had ordered the landlord to pay $15,000 in damages on the basis that there was mould present, it was caused by inadequate sub-floor ventilation, the tenant did not cause the mould, the mould damaged the tenant’s belongings, and the tenant established a loss of $15,000. By not establishing a specific breach under the RT Act the Tribunal failed to make critical legal findings, which amounted to a constructive failure to exercise jurisdiction.
|
Luxy Homes Pty Ltd v Li [2025] NSWCATAP 320: The appellant (a building company) appealed NCAT’s decision in the Consumer and Commercial Division, which ordered the appellant to pay the respondent (a homeowner) $48,170. The appellant submitted that the Tribunal’s characterisation of its impugned conduct as ‘repudiation’ of the contract was not pleaded or argued by the respondent and therefore deprived the appellant of procedural fairness. An Appeal Panel upheld the appeal, concluding that the Senior Member’s brief mention of repudiation did not meet the threshold of giving the appellant a reasonable opportunity to be heard on the issue and thus, denied the appellant procedural fairness. The matter was remitted for redetermination by the Tribunal.
|
Garside v Coffey [2025] NSWCATAP 327: The appellants sought relief under the Strata Schemes Management Act 2015 (NSW) (the SSMA) to require the respondents to bring alleged unauthorised works on their lots into compliance with the relevant laws and regulations, or, in the alternative, to remove the unauthorised works. NCAT denied that relief, a decision appealed on the basis that the Tribunal denied the appellants procedural fairness by failing to consider whether they had standing under s 232 of the SSMA. An Appeal Panel allowed the appeal from NCAT’s Consumer and Commercial Division, concluding the Tribunal overlooked the “scope and operation” of s 232. This denial of procedural fairness breached s 38(5) of the NCAT Act and was an error as to jurisdiction.
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Is non-compliance with NCAT orders a basis for breach of a site agreement under s 129(2) of the Residential (Land Lease) Communities Act 2013 (NSW)? |
Hughes-Mason v SES Village Pty Ltd [2025] NSWCATAP 305
Appeal from the Consumer and Commercial Division D Ziegler, Senior Member; Dr K George, Senior Member
In sum: Section 129(2) of the Residential (Land Lease) Communities Act 2013 (NSW) (the Act) provides that an operator may terminate a site agreement when an owner intentionally or recklessly causes or permits a consequence listed in s 129(2)(a)-(d). The Tribunal issued a termination order on the basis that Ms Hughes-Mason breached her site agreement with the operator by failing to comply with the Tribunal’s conduct performance orders. An Appeal Panel upheld the appeal because it recognised that breach of an NCAT order is not the threshold issue under s 129. Instead, the issue is whether an owner has “intentionally or recklessly caused or permitted” one of the listed outcomes.
Facts: Ms Hughes-Mason and the caravan park operator (the respondent) are parties to a site agreement. In 2023, the operator commenced proceedings seeking orders to “carry out work on a dilapidated site” under s 43(2) of the Act and to terminate the agreement with the appellant for “serious misconduct” under s 129. In the original proceedings the Tribunal was not satisfied that the circumstances justified termination, and so the Tribunal issued conduct performance orders to Ms Hughes-Mason. The Tribunal did so to give her the “opportunity” to show she did not “intentionally or recklessly” cause or permit a s 129 consequence, and that she would take steps to protect fellow residents.
The operator later filed a renewal application alleging that the appellant had not complied with these orders. On 23 April 2025, the Tribunal ordered immediate termination of the site agreement and for Ms Hughes-Mason to give vacant possession on or before 23 July 2025. On 6 June 2025, an Appeal Panel stayed the operation of the termination orders until further order or finalisation of the appeal.
Held (allowing the appeal):
(i) The Tribunal mistakenly asked itself whether Ms Hughes-Mason had complied with NCAT’s orders, rather than whether she “intentionally or recklessly caused of permitted” one of the consequences in s 129(2). The Tribunal was satisfied that because orders were breached, termination was justified. While the Appeal Panel accepted that contravention of an NCAT order may be relevant to breach under s 129, it is not determinative. The Tribunal’s purported “recasting” of s 129(2) by reference to its orders caused it to “fall into error” and apply the wrong legal test.
(ii) Even if the appellant facilitated misconduct and breached NCAT orders, this is not a sufficient basis for termination under s 129 of the Act. The Tribunal must be satisfied that such conduct “intentionally or recklessly caused of permitted” a specified consequence. None of the respondent’s evidence of the appellant’s conduct was sufficient to meet this threshold of intent or recklessness. |
2. Is it sufficient under s 63 of the RT Act, for a landlord to take “reasonable steps” to repair a premises? |
Williams v Wang [2025] NSWCATAP 314
Appeal from the Consumer and Commercial Division G Sarginson, Deputy President
In sum: An Appeal Panel allowed an appeal by tenants whose claims for a rent reduction under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act), and compensation under s 187(1) of the RT Act, had been dismissed by the Tribunal. The Panel concluded that NCAT applied the wrong legal test in respect of the landlord’s duty under s 63 of the RT Act. Instead of considering whether repairs put a premises into a reasonable state of repair within a reasonable time, the Tribunal focused on whether the landlord had taken “reasonable steps” to rectify mould issues.
Facts: The appellants (tenants) and respondent (landlord) were parties to a residential tenancy agreement. Soon after the tenancy commenced, the tenants made complaints about the condition of the premises, most of which involved mould. On 11 March 2025, the landlord served an end of fixed term Notice of Termination which stated that he sought possession to rectify the mould issues. On 22 March 2025, the tenants commenced proceedings in the Consumer and Commercial Division of NCAT, seeking compensation for mould damage and inconvenience.
The landlords argued that the tenants caused the mould issue to reoccur by failing to adequately ventilate the premises. The landlords noted that previous tenants had not complained of mould issues, and the property was left vacant for 3.5 months while being cleaned and repainted as recommended by a mould specialist. The Tribunal concluded that because the mould became apparent after the tenancy commenced, and the landlord took reasonable steps to address the issue (e.g., by bringing in mould cleaners), the Tribunal could not be satisfied of a breach under ss 52 or 63. The landlord identified the following grounds of appeal: application of the wrong legal principles under ss 52 and 63 of the NCAT Act; denial of procedural fairness; and errors in factual findings.
Held (allowing the appeal):
(i) It is not sufficient for a landlord to take “reasonable steps” to repair a premises under s 63(1) of the RT Act. Rather, the question is whether or not repairs were conducted to put the premises into a reasonable state of repair, within a reasonable time. For example, attendance by a mould cleaner on two occasions was not itself sufficient to conclude that the premises had been put back into a state of good repair.
(ii) In applying the wrong legal principle to the facts under s 63(1), the Tribunal made an error on a question of law.
(iii) Even if the Tribunal made an error mixed of fact and law, leave would have been granted to appeal, because the tenants may have suffered a substantial miscarriage of justice due to the decision not being fair and equitable. |
3. Can the absence of a specific finding of breach under the RT Act amount to a constructive failure to exercise jurisdiction? |
Lin v Westerman [2025] NSWCATAP 319
Appeal from the Consumer and Commercial Division G Sarginson, Deputy President; S Hennings, Senior Member
In sum: An Appeal Panel upheld a landlord’s appeal because NCAT failed to find a specific breach of the landlord’s obligations under ss 52 and/or 63 of the RT Act. Not making such critical legal findings amounted to a constructive failure to exercise jurisdiction.
Facts: The tenant brought proceedings against the landlord seeking compensation under s 187(1) of the RT Act due to the condition of the premises: namely, the mould issues which were causing damage to the tenant’s belongings. The tenant alleged a “significant mould infestation” existed, and that her family was forced to leave as a result. The Tribunal ordered the landlord to pay the tenant $15,000 compensation.
The landlord appealed NCAT’s orders on the basis that she did not understand why she owed this money. The Appeal Panel identified that this raised a ground of appeal that the reasons were inadequate. Instead of identifying the precise provision of the RT Act which was breached, the Tribunal made its decision on the basis that there was mould present, it was caused by inadequate sub-floor ventilation, the tenant did not cause the mould, the mould damaged the tenant’s belongings, and the tenant established a loss of $15,000. The primary issue for consideration by the Appeal Panel was therefore whether the Tribunal failed to make critical legal findings, and whether this constituted a constructive failure to exercise jurisdiction.
Held (allowing the appeal):
(i) The Appeal Panel concluded that in not making “critical legal findings” (identifying and considering a specific breach under the RT Act), NCAT’s decision was a constructive failure to exercise its jurisdiction.
(ii) Whether or not inadequate reasons constitute an error on a question of law giving an appeal as of right, or constitute an error of mixed fact and law that requires leave to appeal, will depend on the particular circumstances. In this matter, NCAT had made relevant findings about the condition of the premises but did not make findings that the landlord breached her obligations under a provision of the RT Act. While the Appeal Panel accepted that mould in residential premises may constitute a breach of an obligation under the RT Act (e.g., under ss 52, 63 and 65), by not making out a particular breach the Tribunal’s decision involved a constructive failure to exercise jurisdiction.
(iii) The Tribunal made findings regarding assessment of compensation for breach of the landlord’s duty, but no findings as to the breach of her duties under the RT Act. As such, “a material issue presented for determination” was left unresolved (at [65] quoting Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165), resulting in a constructive failure to exercise jurisdiction rather than a mere failure to give adequate reasons.
(iv) Without an explicit or implicit finding of breach under the RT Act, NCAT’s decision lacked a “foundational basis”.
(v) The Tribunal also failed to address the applicable limitation period to commence proceedings. |
4. Did NCAT’s ‘brief’ mention of repudiation (the basis of its decision) satisfy procedural fairness requirements? |
Luxy Homes Pty Ltd v Li [2025] NSWCATAP 320
Appeal from the Consumer and Commercial Division S de Jersey, Principal Member; R C Titterton OAM, Senior Member
In sum: The appellant (a building company) appealed NCAT’s decision ordering it to pay the respondent (a homeowner) $48,170. Allowing the appeal, an Appeal Panel recognised that NCAT had made an error on a question of law by deciding the matter on the basis of a concept not pleaded or argued by the respondent. As such, the appellant did not have a reasonable opportunity to be heard and was therefore deprived of procedural fairness.
Facts: The respondent and appellant were parties to a building contract(s). The respondent paid a total of $53,170 to the appellant but later issued a notice of termination of the contract following receipt of a Price Increase Notice (the Notice) from the appellant. The Tribunal found that the Notice breached a fundamental term of the contract, and in accepting this repudiation, the respondent was entitled to terminate the contract. Thus, pursuant to the contract, a fee ordered less the sum of $5,000 ($48,170) was refundable to the respondent.
The appellant alleged that NCAT erred in determining the matter on a basis not pleaded or argued by the respondent, namely repudiation. The appellant argued that while the Tribunal was entitled to raise repudiation, it needed to ensure that the appellant had proper notice and a genuine opportunity to be heard, to satisfy its procedural fairness obligations.
Held (allowing the appeal):
(i) Repudiation was not pleaded in substance or by implication in the Points of Claim. The finding of the appellant’s repudiation of the contract was made without oral or written submissions from the parties on the issue.
(ii) The Senior Member briefly raising repudiation did not meet the threshold of giving the appellant a reasonable opportunity to be heard or to make submissions on the point.
(iii) The Tribunal failed to afford the respondent procedural fairness under s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which constituted an error on a question of law
(iv) The Appeal Panel also found that there was a realistic possibility that if the appellant had been given a reasonable opportunity to make submissions on repudiation, the appellant might have successfully defended the refund claim. |
5. Did NCAT deny the appellants procedural fairness by mischaracterising the scope of s 232 of the SSMA? |
Garside v Coffey [2025] NSWCATAP 327
Appeal from the Consumer and Commercial Division E Bishop SC, Senior Member; H Woods, Senior Member
In sum: Under s 132 of the Strata Schemes Management Act 2015 (NSW) (the SSMA), members of an owners corporation may make applications to NCAT in respect of damages to common property or another lot. The appellants sought orders requiring the respondents to bring their unauthorised works into compliance with Australian Building Codes, fire safety regulations and council regulations, or alternatively, that the works be removed. The appellants withdrew this application after accepting the Tribunal’s position that they had no standing to bring the claim under s 132 due to not being part of the owners corporation.
The appellants appealed the orders dismissing the application, arguing that NCAT failed to consider their submission that they had standing under s 232 of the SSMA. The appeal was allowed.
Facts: The appellants and respondents are both lot owners in the same strata scheme. The dispute concerned whether works completed by the respondents were authorised and what, if any, actions could be taken by the appellants. While applying to the owners corporation to construct an extension of their townhouse, the appellants discovered that work done by the respondents to build an additional bedroom and decking area, were allegedly unauthorised. As a result, the appellants sought the imposition of a penalty for breach of a by-law, removal of unauthorised works, and a reinstatement of common property to its original position.
In their Points of Claim, the appellants identified s 232 as their ground of relief: a ground available to lot owners, not only an owners corporation. The respondents’ solicitor “dominated” the direction of the hearing by characterising the relief sought as only available to an owners corporation, not a lot owner. This was on the respondents’ understanding that the only avenue of relief for the appellants was s 132 of the SSMA. Persuaded by such characterisation, the Tribunal encouraged the appellants to withdraw their application without giving them the opportunity to further explain their case.
Held (allowing the appeal):
(i) The Tribunal misconstrued s 232 of the SSMA as only applying to the enforcement of the by-law sought by the respondent. The Appeal Panel cited Vickery v The Owners Strata Plan No 80412 (2020) 103 NSWLR 353 to support its conclusion that this provision is broader than the respondents submitted and empowers NCAT to settle complaints and disputes regarding the operation, administration or management of a strata scheme.
(ii) The appellants were “ambushed” by the argument regarding standing because at no point prior to the respondents’ filing the night before the hearing, were the appellants put on notice of the argument.
(iii) The SSMA is not structured in such a way that the conferral of specific powers elsewhere in the SSMA limit the general power under s 232(1) and any specific powers do not form a class by reference to which the general power under s 232(1) is to be read down.
(iv) For the purposes of s 232 SSMA, an interested person includes a lot owner.
(v) The Tribunal overlooked the “scope and operation” of s 232 and “mischaracterising and misstating the nature of the proceedings” resulted in a breach of s 38(5) of the NCAT Act, an error as to jurisdiction, and a denial of procedural fairness. |
|
|
Schwarz v Commissioner of Police, NSW Police Force [2025] NSWCATAP 303 Appeal from the Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President Catchwords: APPEALS — From exercise of discretion to admit illegally obtained evidence APPEALS — From finding that not in the public interest for Appellant to hold a firearms licence |
Hughes-Mason v SES Village Pty Ltd [2025] NSWCATAP 305 Appeal from the Consumer and Commercial Division Decision of: D Ziegler, Senior Member; Dr K George, Senior Member Catchwords: APPEAL – residential land lease community – termination of site agreement for serious misconduct – whether Tribunal misapplied s 129(2) of the Residential (Land Lease) Communities Act 2013 – whether there was no evidence to support a finding of fact. |
Pintaric v Atilgan [2025] NSWCATAP 307 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – repair of premises – mould –excessive rent– concession by agent of landlord at hearing – agency – ostensible authority – whether party bound by concession at hearing |
Shwan v Reachclad Pty Ltd trading as Ace Trailers [2025] NSWCATAP 308 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; J McAteer, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law – Failure to give reasons — Adequacy of reasons – Reasons satisfy applicable standard APPEALS — Leave to appeal — Principles governing – Leave to appeal refused CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to fitness for disclosed purpose CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill |
Poliansky v NSW Land and Housing Corporation [2025] NSWCATAP 309 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; J Redfern PSM, Senior Member Catchwords: APPEAL – residential tenancy − social housing – alleged breaches of residential tenancy agreement – consent orders made – whether interlocutory or ancillary orders – extension of time to lodge appeal – no error on a question of law – leave to appeal refused |
Schach v Dowdy Constructions Pty Limited [2025] NSWCATAP 310 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; D Goldstein, Senior Member Catchwords: COSTS-whether costs orders made in respect of costs at first instance should be set aside-proceedings settled other than in relation to costs-proceedings at first instance not determined on merits but concluded by submission of consent orders-whether Respondent had defended the application unreasonably and/ or whether Respondent had capitulated- application of r38 Civil and Administrative Tribunal Rules. |
Li v WDL International Investments Pty Ltd [2025] NSWCATAP 311 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; Dr K M George, Senior Member Catchwords: APPEAL - question of law - procedural fairness -decision against the weight of evidence - fair and equitable - LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) |
|
Design 2 Manufacture Pty Ltd v Anglicas [2025] NSWCATAP 313 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; R Titterton OAM, Senior Member Catchwords: CONSUMER LAW — Consumer guarantees — Action against supplier — Contract relation to the conversion of inclinators for passenger use — Whether a supply of goods or a supply of services — Held contract was for the supply of goods CONSUMER LAW — Enforcement and remedies — Remedies relating to consumer guarantees — Action against supplier of goods — Distinction between the remedies available in respect of a supply of goods and the remedies available in respect of a supply of services WORDS AND PHRASES — “supply of goods” — “supply of services” |
Williams v Wang [2025] NSWCATAP 314 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – state of repair of premises – mould – rent reduction – compensation - applicable principles |
Wong v Registrar-General of New South Wales [2025] NSWCATAP 315 Appeal from the Administrative and Equal Opportunity Division Decision of: K Robinson, Principal Member; P H Molony, Senior Member Catchwords: APPEALS – leave - access to information – procedural fairness - jurisdiction – further evidence refused – information provided in full - appeal dismissed |
Curtis v GRC Property Maintenance Pty Ltd [2025] NSWCATAP 316 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; H Woods, Senior Member Catchwords: APPEALS — Leave to appeal — Principles governing APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence APPEALS — Procedural fairness |
Baptista v Hyper Apps Pty Ltd [2025] NSWCATAP 318 Appeal from the Consumer and Commercial Division Decision of: G K Burton SC, Senior Member; H Woods, Senior Member Catchwords: APPEALS – interlocutory decision PRACTICE and PROCEDURE – variation of interlocutory orders COSTS – where substantive appeal rendered nugatory by intervening event (further Tribunal orders) |
Lin v Westerman [2025] NSWCATAP 319 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; S Hennings, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – condition of premises – mould damage to goods of tenant – constructive failure to exercise jurisdiction |
Luxy Homes Pty Ltd v Li [2025] NSWCATAP 320 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; R C Titterton OAM, Senior Member Catchwords: BUILDING AND CONSTRUCTION – building claim – refund of deposit – repudiation – procedural fairness |
Morri v Addbuild Master Builders Pty Ltd (No 2) [2025] NSWCATAP 321 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member Catchwords: COSTS – Civil and Administrative Tribunal Act 2013, s 60 – whether there are special circumstances warranting an award of costs – whether reliance by the appellant on appeal on new evidence, found not to be significant and to have been available at the time of the original hearing, disadvantaged the respondent or breached the appellant’s duty under s 36(3) – whether the appeal was misconceived or untenable– no special circumstances – no costs awarded |
|
YNR v YPK [2025] NSWCATAP 323 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; L Organ, Senior Member; Dr B McPhee, Senior Member Catchwords: PROCEDURAL FAIRNESS – whether by not admitting documents not tendered by appellant’s legal representative the Tribunal denied the appellant procedural fairness EVIDENCE – whether Tribunal made findings of fact without probative evidence NCAT – scope of obligation imposed by Civil and Administrative Tribunal Act 2013 (NSW), s 38(6)(a) “to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings” |
Vok v NSW Land and Housing Corporation [2025] NSWCATAP 324 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing - loss of quiet enjoyment –actions of neighbouring tenant- whether landlord took all reasonable steps to prevent breach– s 50(2) and (3) Residential Tenancies Act 2010 (NSW) |
|
|
Garside v Coffey [2025] NSWCATAP 327 Appeal from the Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; H Woods, Senior Member Catchwords: APPEALS — appeal from order dismissing application — withdrawal of application — Tribunal made error as to jurisdiction — breach of procedural fairness — utility of appeal |
|
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. |
