NCAT Appeal Panel Decisions Digest Issue 2 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 February 2025: |
Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34: An Appeal Panel set aside an interlocutory decision of NCAT and instead made a decision to stay the cancellation of the respondents’ licences held under the Property and Stock Agents Act 2002 (NSW) (PSA Act) until further orders of NCAT. The Appeal Panel found that NCAT did not engage with all submissions under s 60 of the Administrative Decisions Review Act 1997 (NSW) and did not deal with uncertainties raised regarding ss 9 and 126 of the PSA Act, which constituted errors of law.
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Symond v Dovera Homes Pty Ltd [2025] NSWCATAP 19: An Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division where the damages awarded were against the weight of the evidence. The Appeal Panel found that the appellants, who were not legally represented, had provided expert evidence on only part of the damages under the building contract, rather than the total cost. At first instance, NCAT did not take this into account when determining damages, which resulted in an incorrect and smaller award ordered. The Appeal Panel varied the money order to the correct amounts.
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Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAP 31: An Appeal Panel granted leave and allowed an appeal, setting aside the orders of NCAT and returning the matter to the Tribunal for reconsideration in circumstances where the Tribunal had not provided adequate reasons. The Appeal Panel noted that the conclusion reached was not necessarily wrong, however the inadequate reasons justified reconsideration of the whole case. The orders at first instance were set aside.
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YKQ v YKR [2025] NSWCATAP 42: An Appeal Panel decided not to exercise the discretion to extend the time to lodge an appeal, in circumstances where the appellant submitted that he had contacted NCAT and been advised that “it would be OK to be late but to lodge it as soon as practical”. The Appeal Panel found that the appellant’s reasons for the delay in lodging the appeal were not sufficient, however the basis for refusing to exercise the discretion was because the appeal had virtually no prospects of success.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Is NCAT required to take into account all submissions made by an administrator under s 60(3)(b) of the Administrative Decisions Review Act 1997 (NSW)? |
Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 Balla ADCJ, Principal Member; P H Molony, Senior Member
In sum: An Appeal Panel granted leave and allowed an interlocutory appeal in circumstances where NCAT did not engage with and consider some of the submissions of the Commissioner of Fair Trading (the administrator), which was an error of law. The Appeal Panel reconsidered the application for an interim order to stay the cancellation of the licences of the respondents, reviewed the relevant materials and ultimately stayed the decision to cancel the licences.
Facts: PSMG Pty Ltd and its sole director, Mr Whitney Hong Wang (the respondents) held respective corporation and class 1 licences under the PSA Act. In July 2024, the licences held by the respondents were cancelled by the administrator and the respondents were disqualified from holding a licence for 10 years as part of that decision. The respondents applied to NCAT for a review of that decision and applied for an interim stay application under s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The following day, the administrator appointed a manager of PSMG Pty Ltd under s 126(1)(b) of the PSA Act because it was unable to operate due to the licence cancellations. Prior to the stay application hearing, NCAT made an interim order in the stay application that the licence cancellations were to be treated as on foot until further orders from NCAT. The stay proceedings were then heard, and NCAT determined to continue with the first interim order. The grounds of appeal raised 4 questions of law.
Held (granting leave to appeal and allowing the appeal in part):
(i) The first ground of appeal alleged that NCAT had applied the wrong test. The Appeal Panel was not persuaded by this ground of appeal and noted that any reference in the decision to “whether the interim order should continue” was an “infelicitous form of shorthand” and the Member understood that the Tribunal was determining “whether the interim order should continue, be varied or revoked under s 60(4)”. The Appeal Panel referred to the well-known limits of judicial review and the need for principles of practical and principled restraint as outlined in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578 at [76]-[77].
(ii) The second ground of appeal, in relation to which the Appeal Panel agreed with the administrator, concerned whether NCAT was obliged to take into account the submissions made by the administrator under s 60(3)(b) of the ADR Act. The Tribunal’s decision at first instance did not address the administrator’s submission on the nature or seriousness of the conduct leading to the decision under review. The failure to address these submissions was an error of law and the appeal ground was made out.
(iii) With regard to the third ground of appeal, the administrator submitted that the Tribunal erred by purporting to exercise jurisdiction to review the validity or effectiveness of the appointment of a manager under s 126(I)(b) of the PSA Act. The Appeal Panel did not accept this ground of appeal as the validity of the manager’s appointment and the adverse impact on the respondents were live issues, and it was “clearly open” to the Tribunal to inquire into the practical impact of the appointment. The Appeal Panel noted that the fact that the decision referred to the difficulties and uncertainties of the manager’s appointment does not mean that the Tribunal purported to review the decision.
(iv) The fourth ground of appeal concerned whether NCAT took into account irrelevant considerations regarding the appointment of a manager to the business in making the stay decision. The Appeal Panel found that, while NCAT does not have jurisdiction to appoint a manager to the business, the Tribunal is not prevented from considering the consequences of such an appointment where public interest considerations under s 60 are involved. |
2. In what circumstances may the Appeal Panel vary a money order and revise calculations for damages outlined in a first instance decision? |
Symond v Dovera Homes Pty Ltd [2025] NSWCATAP 19 G Ellis SC, Senior Member; P Molony, Senior Member
In sum: An Appeal Panel allowed an appeal and varied NCAT’s orders where homeowners (the appellants), who were not legally represented at first instance, provided expert evidence on only part of the estimated costs of rectifying defective work under a building contract. In assessing the damages owed to the appellants, the Member at first instance deducted the unpaid balance of the full and completed contract price, rather than the part of the costs to align with the appellants’ evidence, which resulted in a smaller award of damages for the appellants.
Facts: At first instance the appellants were awarded damages against their builder (the respondent). NCAT had adopted the traditional approach of adding the estimated cost of completion together with the estimated cost of rectification of defects and then deducted the unpaid balance of the contract price. The Member then awarded an additional $9,643.50 for miscellaneous claims, giving the awarded amount, namely $152,328.44. That decision relied upon an expert report regarding the cost of completion, however, that report set out the estimated cost up to the lock up stage (stage 5 of 8), not to completion of stage 8, which was an unusual approach. The appellants, who were now legally represented, contended that the appropriate figure for damages was $446,578.44 and that the first instance decision was against the weight of the evidence.
Held (granting leave to appeal, allowing the appeal and varying the money order):
(i) The Appeal Panel found that the appellants had chosen to run their case by reference to their position at lock up stage (stage 5 of 8) and, as it is not the role of the Appeal Panel to hear the case again, that is how the assessment must now be made. The Appeal Panel set out the rectification costs required to put the appellants in the same position as if the work had reached lock up stage without any defects and determined that the damages totalled $328,878.44.
(ii) The Appeal Panel determined that the first instance decision was against the weight of the evidence. Since the position was clear and there was a factual error, the Appeal Panel found that there was a miscarriage of justice that warranted granting leave to appeal.
(iii) The Appeal Panel found that there was no utility in ordering NCAT to rehear the application when the position was clear, the appellant agreed with the position, and the respondent had not participated in the proceedings. The Appeal Panel varied the money order to reflect the corrected amount above, and also made an order for the respondent to pay the appellants’ costs. |
3. If an applicant’s submissions are “not clear”, how can NCAT ensure adequate reasons for a decision are provided? |
Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAP 31 Hennessy ADCJ, Deputy President; L Andelman, Senior Member
In sum: An Appeal Panel granted leave and allowed an appeal, setting aside the orders of NCAT and returning the matter to NCAT for reconsideration. The matter concerned whether the appellant could obtain “copy access” to Body-Worn-Video (BWV) of a NSW Police Officer through an application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), which allowed for distribution of the BWV to the public. The appellant had only been provided “view access” which did not allow an opportunity for public viewing or debate concerning the conduct of the police officer. At first instance, the Tribunal found the public interest argument was “not clear” and there was no reference in the decision as to whether any weight was given to the public interest test outlined in s 13 of the GIPA Act. The Appeal Panel found that the Tribunal had not provided adequate reasons, noting that the conclusion reached was not necessarily wrong however the Appeal Panel’s conclusion justified reconsideration of the whole case.
Facts: Mr Higgins (the appellant) was travelling along the Hume Highway with his wife and 2 children when a police officer pulled over his car. The police officer informed the appellant that his bike rack was incorrectly installed and was partially obscuring his number plate. The police officer inquired about the child’s car seat which did not comply with Australian standards. The police officer would not permit the appellant to continue his trip using a non-compliant car seat and directed him to drive to Gundagai with police lights following him. The appellant was then free to go but was told not to drive with the non-compliant car seat. The interactions with the appellant and the police officer were recorded on BWV.
The appellant applied to the Commissioner of Police (the respondent) under the GIPA Act for
“copy access” of the BWV for public debate and consideration. In the initial decision under review, the respondent decided to give the appellant “view access” because releasing a copy of the BWV would constitute “distribution” of the information which is a breach of the Surveillance Devices Act 2007 (NSW), and the respondent cannot control how information released under the GIPA Act is disseminated. The respondent also considered that there was no overriding public interest against disclosure if “view access” was provided under s 72(1)(c) of the GIPA Act. NCAT affirmed the respondent’s decision at first instance.
On appeal, the appellant submitted that NCAT did not give adequate reasons about his “public debate consideration”, for which the Senior Member dedicated a single sentence stating that it was “not clear” how the disclosure would contribute to a public interest debate.
Held (granting leave to appeal, allowing the appeal in part and ordering that the matter be reconsidered by NCAT):
(i) With regard to the adequacy of reasons concerning the public debate, the Appeal Panel found that the sequence of reasons was not logical, and the process should have included a finding as to whether the “public debate consideration” was a consideration in favour of disclosure. The Tribunal should then have gone on to apply the “public interest test” in s 13 of the GIPA Act to all the considerations for and against disclosure, which the Tribunal did not.
(ii) The Appeal Panel found that the inadequate reasons at first instance justified setting aside the decision and sending the matter to NCAT for reconsideration. Should NCAT decide that there is no overriding public interest against disclosure of the information in the BWV, copy access should be given. |
4. When will the Appeal Panel exercise the discretion to accept an appeal that was lodged late? |
YKQ v YKR [2025] NSWCATAP 42 Hennessy ADCJ, Deputy President; A Britton, Deputy President; M Bolt, General Member
In sum: An Appeal Panel decided not to exercise the discretion to extend the time to lodge an appeal in circumstances where the appellant contacted NCAT and was told that “it would be OK to be late but to lodge it as soon as practical”. The appellant lodged the notice of appeal 6 weeks late and, while the Appeal Panel noted that the reasons for the delay were not sufficient, the basis for the refusal to exercise the discretion to extend the time to appeal was that the appeal had virtually no prospects of success.
Facts: The appellant is the son of an elderly woman (the mother) who is living in an aged care facility. At first instance NCAT appointed the Public Guardian as the mother’s guardian and 2 of her other adult sons as her financial managers. The appellant lodged a late appeal of this decision. The appeal application stated that after waiting for the written reasons, the appellant had difficulty completing the application within the 28-day time limit. The appellant submitted that he had contacted NCAT and was “advised that it would be OK to be late but to lodge it as soon as practical”. The appellant submitted that this is what he had done. When asked in the hearing about the reasons for delay, the appellant said that there was a lot of documentation to prepare, and he had to arrange for the Tribunal’s decision to be printed.
With regards to the grounds of appeal, the appellant submitted that NCAT at first instance made incorrect findings of fact concerning whether his Enduring Power of Attorney (EPoA) was “activated”. The appellant also argued that he and his brother should have been appointed jointly as guardians for the mother.
Held (refusing leave to appeal out of time and dismissing the appeal):
(i) The Appeal Panel noted that the length of the delay is relatively short and there is no prejudice to the other parties should the appeal be accepted. However, the Appeal Panel noted that the appellant’s reasons for the delay were not satisfactory and that, if permission were to be granted to appeal out of time, the appellant would be entitled to appeal on a question of law only. It was found that the appeal ground concerning whether or not the EPoA was “activated” is likely to be characterised as a question of fact, not law. For that reason, the ground of appeal on a question of law had minimal prospects of success. This was the main reason for refusing to exercise the discretion to accept the appeal out of time.
(ii) Regarding the grounds of appeal, the Appeal Panel observed that the appellant did not put himself forward as a suitable guardian at first instance and, as his brother was not “suitable”, NCAT could not appoint either brother, and had no option but to appoint the Public Guardian. The Appeal Panel determined that NCAT’s conclusion does not depend on whether the Tribunal was wrong to find that the appellant’s EPoA was not activated.
(iii) The appellant also raised that NCAT accepted legal documents as valid when they were not valid. There was no evidence filed in support of this ground of appeal and the Appeal Panel did not accept this submission. |
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Symond v Dovera Homes Pty Ltd [2025] NSWCATAP 19 Appeal from the Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; P Molony, Senior Member Catchwords: APPEALS – Calculation of damages revised – application of established principles |
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Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2025] NSWCATAP 24 Appeal from the Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS – Tribunal powers – control of proceedings – where appellant is a maximum security inmate at Goulburn Correctional Centre – where appellant seeks additional out-of-cell computer access including during lock-ins to prepare for the appeal – relevant principles - whether the order is necessary to ensure the appellant has unimpeded access to the Tribunal, as part of the basic right to a fair trial in the appeal |
Lake v Ballina Golf and Sports Club Limited & Anor [2025] NSWCATAP 25 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEAL - whether to extend time for lodgement of appeal - lengthy delay in commencing appeal - no satisfactory explanation for delay - lack of merits of appeal - absence of evidence about how golf handicap was made inactive - legal structure concerning golf handicap unclear - legal basis of claims unclear - application for extension of time to commence the appeal refused. |
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NSW Self Insurance Corporation v CN1 Pty Limited [2025] NSWCATAP 27 Appeal from the Consumer and Commercial Division - Home Building Decision of: K Ransome, Principal Member; E Bishop SC, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law – statutory construction HOME BUILDING — meaning of developer — meaning of residential development — s 3A of the Home Building Act 1989 — owner claimed under statutory warrants in insurance policy |
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YKO v YKS [2025] NSWCATAP 29 Appeal from the Guardianship Division Decision of: Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member; M Bolt, General Member Catchwords: APPEAL – guardianship – error of law established in part - whether the challenged finding was material to, or likely to have made a difference to, the outcome of the decision under appeal |
Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 Appeal from the Occupational Division Decision of: Seiden SC DCJ, Deputy President; J Redfern, Senior Member Catchwords: ADMINISTRATIVE LAW – appeal on a question of law – Security Industry Act 1997 (NSW) – application for security industry licence – whether conviction for perjury under s 703(1) of the Criminal Code 2002 (ACT) is a conviction for an offence involving “dishonesty” WORDS AND PHRASES – “an offence involving fraud, dishonesty or stealing” |
Higgins v Commissioner of Police, New South Wales Police Force [2025] NSWCATAP 31 Appeal from the Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; L Andelman, Senior MemberInsert Member names Catchwords: APPEALS — Adequacy of reasons – findings on material questions of fact – reasoning process APPEALS — Application of wrong principle - “copy access” and “view access” |
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Community Association DP 270244 v The Owners-Strata Plan 69205 (No. 2) [2025] NSWCATAP 33 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member Catchwords: COSTS-respondent’s application for 50% of its costs of appeal-appeal from decision by the Tribunal in proceedings referred to Tribunal by an adjudicator in which the Tribunal has no power to award costs- appeal also concerned with some matters falling within the original jurisdiction of the Tribunal-appeal unsuccessful on all matters except in relation to a costs order made by the Tribunal -special circumstances for making a costs order required to be established as provided for in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)-no special circumstances shown. |
Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 Appeal from the Occupational Division Decision of: Balla ADCJ, Principal Member; P H Molony, Senior Member Catchwords: ADMINISTRATIVE LAW – appeal against decision to stay of decision to cancel strata management corporate and individual licences under the Property and Stock Agents Act 2002 – whether Tribunal had regard to mandatory consideration under s 60(3) of the Administrative Decisions Review Act 1997 – effect of appointment of manager pursuant to s 126 of the Property and Stock Agents Act 2002 on assessment of public interest – role of manager. APPEAL – interlocutory appeal – leave granted due to importance of issues going to public interest and public administration. |
Kennedy v Singh [2025] NSWCATAP 35 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; G Burton SC, Senior Member Catchwords: APPEAL – RESIDENTIAL TENANCY - No issue of principle |
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Nikolakopoulos v Kaya [2025] NSWCATAP 37 Appeal from the Consumer and Commercial Division - Commercial Decision of: G Burton SC, Senior Member; J Ledda, Senior Member Catchwords: REAL PROPERTY – RETAIL LEASES – exercise of option to renew and lease then terminated by lessor - alleged breaches of covenant by lessor and lessee – security deposit |
Rappaport v iSelect Autos NSW Pty Ltd [2025] NSWCATAP 38 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; A Boxall, Senior Member Catchwords: APPEAL - consumer claim - major defect - insufficient evidence - late evidence - no error of law - no ground warranting granting leave to appeal |
Akdogan v The Owners - Strata Plan No 55665 [2025] NSWCATAP 39 Appeal from the Consumer and Commercial Division - Strata Schemes Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent against non-parties – principles – appeal lodged by non-parties - withdrawal of appeal by the non-parties - no hearing on the merits – costs application dismissed |
Ultimo Developments Pty Ltd v Wilson [2025] NSWCATAP 40 Appeal from the Consumer and Commercial Division - Home Building Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: BULIDING AND CONSTRUCTION – appeals on a question of law – whether the Tribunal erred in law in finding that the floorboards were installed without due care and skill by proceeding as if the content of the obligation of due care and skill was determined by the content of an installation guide for the floorboards - whether Tribunal erred in finding that builder’s expert made a concession at the Tribunal hearing |
Andrew v Anania [2025] NSWCATAP 41 Appeal from the Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; D Fairlie, Senior Member Catchwords: APPEAL — dividing fence — renewal proceedings |
YKQ v YKR [2025] NSWCATAP 42 Appeal from the Guardianship Division Decision of: Hennessy ADCJ, Deputy President; A Britton, Deputy President; M Bolt, general member Catchwords: CIVIL PROCEDURE — protective jurisdiction — appeals from Guardianship Tribunal CIVIL PROCEDURE — time — extension of time APPEALS — from finding of fact — function of Appeal Panel |
Goel v Limitless Plumbing and Drainage Pty Ltd [2025] NSWCATAP 43 Appeal from the Consumer and Commercial Division - Home Building Decision of: D Robertson, Principal Member; J Connelly, Senior Member Catchwords: PRACTICE AND PROCEDURE – Civil and Administrative Tribunal – Civil and Administrative Tribunal Regulation 2022 cl 9 – Extension of time to file application to set aside decision made in the absence of a party |
Commissioner of Police, NSW Police Force v Price [2025] NSWCATAP 44 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; H Dixon SC, Senior Member Catchwords: APPEAL – Administrative review – Jurisdiction – Notice of suspension of firearms licence – No expiry date on Notice – Whether invalid firearms licence suspension notice can or does amount to revocation notice – Tribunal’s jurisdiction to administratively review purported decisions |
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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. |
