NCAT Appeal Panel Decisions Digest Issue 3 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 March 2025: |
Aquilina v Hawkins; Hawkins v Aquilina [2025] NSWCATAP 50: An Appeal Panel has set aside the Tribunal’s first instance decision not to determine two residential tenancy matters because the applications sought to invoke federal jurisdiction as one of the parties did not live in New South Wales. The Appeal Panel found that in this case, a party resided overseas, and the dispute did not involve residents of different states, therefore no federal jurisdiction was involved. It was an error of law, and NCAT failed to determine the matters that were properly before it. The Appeal Panel made orders for NCAT to reconsider the applications.
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Secretary, Department of Customer Service v Bob Building Services Pty Ltd [2025] NSWCATAP 48: An Appeal Panel granted leave and allowed an appeal of an interim stay application concerning disciplinary orders. At first instance, the Member dealt with s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) although the Member did not engage in matters affecting the public interest, which is a mandatory consideration under s 60(3)(c). The matter was remitted to a differently constituted Tribunal for reconsideration.
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Elmaadawy v Decent Designs Pty Ltd [2025] NSWCATAP 45: An Appeal Panel has dismissed an appeal where a homeowner claimed damages for the cost of defective works against the builder where the builder ceased work due to the homeowner’s conduct. The builder also made an application to NCAT for the payment of an invoice. At first instance, the homeowner’s claim was dismissed, and he was ordered to pay the invoice. On appeal, the homeowner raised procedural fairness concerns but did not provide a transcript of the hearing, despite being ordered to. The appeal also impermissibly challenged findings of facts, and the grounds of appeal were not made out.
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Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54: The Appeal Panel found that, at first instance, the Tribunal did not consider some of the known personal circumstances of the appellant when exercising the broad discretion under s 25 of the Taxation Administration Act 1996 (NSW) to determine whether there was a basis for remission of premium interest rate on unpaid land tax. The additional factors that were not considered may have tended to favour remission of premium interest, which was an error of law, and the matter was remitted to the Tribunal for reconsideration.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Does NCAT have jurisdiction in a residential tenancy dispute when a party is living overseas? |
Aquilina v Hawkins; Hawkins v Aquilina [2025] NSWCATAP 50 Dr R Dubler SC, Senior Member and J Connelly, Senior Member
In sum: The Tribunal at first instance refused to determine two matters on the basis that the matters sought to invoke federal jurisdiction as the dispute was between residents of different States. However, it was not in dispute that one of the parties resided overseas. While it is for the Tribunal itself to determine its own jurisdiction, federal ‘diversity jurisdiction’ is not invoked when one party is an overseas resident, only when the parties are residents of different States. The Tribunal had jurisdiction to determine the matters and failed to determine matters that were properly before it.
Facts: The landlord made an application under the Residential Tenancies Act 2010 (NSW) for rent arrears as he alleged the tenant had stopped paying his rent two months prior to vacating. The landlord also sought costs for cleaning and costs to repair damage. The tenant subsequently filed an application seeking various orders including compensation and a reduction in rent for being unable to use three rooms due to termite damage. Both applications were heard at the same time and the Tribunal declined to determine the applications on the same jurisdictional ground - that it involved the exercise of federal jurisdiction because it involved a matter between residents of different States. The tenant appealed those orders.
Held (allowing the appeal and sending the matter to the Tribunal for reconsideration):
(i) The Tribunal is not a court of a State and only a court of a State may be invested with federal jurisdiction as prescribed by ss 75 and 76 of the Constitution, commonly called ‘federal jurisdiction’. This means that to the extent the proceedings in the Tribunal involve a federal matter, such as a residential tenancy dispute between residents of different States, the Tribunal has no jurisdiction.
(ii) It is a complicated question to decide which matters involve federal jurisdiction and those that do not. The Appeal Panel noted that it is generally accepted that the provisions do not apply (and no federal jurisdiction is involved) when one of the parties is: A corporation; The resident of a Territory; A non-permanent resident of a different State; or A party who resides overseas, such as in the case the subject of the appeal.
(iii) The Appeal Panel determined that, as with the above examples, this was not a case where the dispute involved residents of different States of Australia, and that the Tribunal had failed to determine the matters that were properly before it. |
2. To what extent should public interest considerations in s 60(3)(c) of the ADR Act be specifically addressed? |
Secretary, Department of Customer Service v Bob Building Services Pty Ltd [2025] NSWCATAP 48 K Ransome, Principal Member; J McAteer, Senior Member
In sum: NCAT granted an interim stay application at first instance. Despite the reasons referring to s 60 of the Administrative Decisions Review Act 1997 (ADR Act), an Appeal Panel found that the Tribunal did not engage with public interest matters at first instance, including the nature and seriousness of the conduct or any relevant history and context of the decisions under review. This was found to be a failure to have proper regard to the mandatory considerations in s 60(3)(c) of the ADR Act. Leave to appeal was granted, the appeal was allowed, and the matter was remitted to a differently constituted Tribunal for reconsideration.
Facts: In December 2024, the Secretary of Department of Customer Service (the Department) made two disciplinary decisions under s 62 of the Home Building Act 1989 (NSW) (HB Act). The first was to cancel the contractor licence and disqualify Bob Building Services Pty Ltd from being a holder of authority under the HB Act and the second decision was to do the same to Mr Ajit Veerapani (the respondents). The respondents applied to NCAT for a review of a decision made by the Department. An interim application was made to stay the disciplinary decisions of the Department. At the first instance hearing, the Department did not provide written submissions and declined to make any oral submissions. The respondents provided written submissions in support of the stay application and made brief oral submissions at the hearing. The Member granted the stay application and gave oral reasons which referred to s 60 of the ADR Act, followed by written reasons at the request of the Department.
Held (allowing the appeal):
(i) The Appeal Panel found that that the Tribunal did not engage with matters regarding public interest in the first instance decision. The failure to engage with the nature and seriousness of the conduct or any relevant history and context of the decision, was a failure to have proper regard to the mandatory considerations in s 60(3)(c) of the ADR Act.
(ii) The matter was remitted to a differently constituted tribunal with further evidence if required. |
3. In what circumstances can a homeowner hinder their builder and then make a claim for incomplete or defective works? |
Elmaadawy v Decent Designs Pty Ltd [2025] NSWCATAP 45 E Bishop SC, Senior Member; PH Molony, Senior Member
In sum: This appeal concerned two applications under the Home Building Act 1989 (NSW) (HB Act), one from a homeowner regarding defective works and the second from the builder concerning an outstanding invoice. The builder had validly issued a suspension notice in accordance with the building contract due to the conduct of the homeowner. At first instance, NCAT found that the homeowner did not prove that the builder had carried out defective work and ordered the homeowner to immediately pay the outstanding invoice. On appeal, the homeowner’s grounds of appeal impermissibly challenged findings of fact and relied on invoices which were not provided to the Tribunal below. The second ground of appeal was described as “entirely hopeless” by the Appeal Panel, and the appeal was ultimately dismissed.
Facts: The builder and the homeowner entered into a building contract with works commencing on 11 September 2023, with an agreed completion date of 8 November 2023. There were also some additional works that were not subject to a written agreement. While works were being undertaken, the homeowner informed the builder that he and his family were moving into the property on 20 October 2023. The builder informed the homeowner on several occasions that it was not safe to do so, and the family moved in, despite works not being complete. The builder’s contract included a suspension clause, and the builder issued a notice of suspension under the contract due to the homeowner’s interference with works. The builder then ceased work.
On 7 December 2023, the first application to NCAT was made by homeowners which claimed damages for incomplete works and defects. The builder then lodged a separate application for the payment of an outstanding invoice for the work he had already undertaken prior to the homeowners moving in. At first instance, NCAT noted that there was a lack of evidence in support of either case, however, ultimately, the Tribunal was not satisfied that the homeowners had discharged the onus of proving that the builder had carried out defective work, dismissing the first application. In determining the builder’s application, NCAT was satisfied that the builder was justified in issuing the suspension notice and that this was a sufficient basis to award payment of the outstanding invoice.
Held (refusing the appeal):
(i) The first ground of appeal concerning procedural fairness was unfounded. The homeowner asserted that the Tribunal did not consider evidence he gave under oath at the hearing however, despite an order to provide a copy of the transcript of those parts, the homeowner did not. Consequently, the Tribunal was unable to assess the accuracy of those complaints. The Appeal Panel found that the Tribunal “very carefully had regard to all the evidence before it”.
(ii) The homeowners alleged that the Tribunal misconstrued s 10 of the HB Act. The Appeal Panel considered that this ground of appeal impermissibly challenged the factual findings made by the Tribunal. The ground of appeal was found to be “entirely hopeless”, and it was rejected. |
4. When exercising a broad discretion under s 25 of the Tax Administration Act 2996 (NSW), what is NCAT required to consider? |
Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 Seiden SC DCJ, Deputy President; J Sullivan, Senior Member
In sum: The Appeal Panel has found that the Tribunal at first instance did not consider the known personal circumstances of Mr Wan (the appellant) when exercising the broad discretion under s 25 of the Taxation Administration Act 1996 (NSW) (TA Act). The Tribunal at first instance considered that there was no basis for remission of the premium interest rate on the unpaid surcharge land tax. The additional factors that NCAT did not take into account may have tended to favour reduction of the premium interest. The error may have had a material effect on the outcome and the matter was remitted to the Tribunal for reconsideration.
Facts: In 2015, the appellant purchased two residential properties in NSW. In 2017, surcharge land tax was introduced, which was imposed on a “foreign owner” under s 5A of the Land Tax Act 1956 (NSW) (LT Act). In the 2018 and 2019 land tax years, the appellant was onshore for less than 200 days and was liable for the surcharge land tax. The appellant was sent three letters at his first street address to request payment of the 2018 land tax. However, the appellant contended that he only received the fourth piece of correspondence when he changed his address to the second property and a legal notice was sent to the second address (which was paid in January 2019 and is not the subject of this dispute).
While the respondent had initially assessed the 2019 surcharge land tax as “nil” in the 2018 legal notice, the respondent became aware that the appellant was liable for the surcharge land tax and reassessed the appellant’s tax as $13,430.65 together with $4,356.83 in market rate and premium rate interest. The appellant objected to paying interest on the basis that he was not aware of the land tax until the end of 2023, when the respondent contacted him. The 8% premium interest component can be remitted in exceptional circumstances however the respondent declined to exercise its discretion on the basis that the appellant did not demonstrate that he took reasonable care to comply with his tax obligations. The matter then came before NCAT and at first instance, noting that the obligation was on the appellant to make enquiries as to whether he was liable to pay the surcharge, NCAT reaffirmed the respondent’s decision not to exercise the discretion.
Held (allowing the appeal and sending the matter to the Tribunal for reconsideration):
(i) There was no error in the approach taken by NCAT in relation to the market rate component of the interest. In the absence of “exceptional circumstances” there is no warrant for a reduction, and no obligation on the respondent to make enquiries or track down taxpayers.
(ii) With respect to the premium rate of interest, the Tribunal was required to consider whether there was a factor which warranted remission having regard to the subject matter, scope and purpose of s 25 of the TA Act. The Tribunal at first instance had limited itself to the question of whether there was reasonable care or exceptional circumstances, rather than the broader abovementioned question, and the Appeal Panel found that “the exercise (or non-exercise) of discretion must always have regard to the scope and purpose of the legislation”. In this case, the premium rate is penal in nature, which should have formed part of the consideration. The Appeal Panel found that the error in approach was an error of law that was capable of making a difference to the Tribunal’s decision. |
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Elmaadawy v Decent Designs Pty Ltd [2025] NSWCATAP 45 Appeal from the Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; PH Molony, Senior Member Catchwords: APPEALS — home building — exercise of discretion — adequacy of evidence APPEALS — Procedure — Stay pending appeal — abuse of process — relitigating interlocutory application — oppressive — contrary to administration of justice |
Innovative Builders and Engineers Pty Ltd v Shah No 2 [2025] NSWCATAP 46 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; D G Fairlie, Senior Member Catchwords: Costs - rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – appeal allowed - costs of appealed proceedings to be costs in the cause on rehearing – costs of appeal to follow the event – measure of costs recoverable by self-represented parties –where leave to be legally represented not sought or obtained – discretion to make costs orders – meaning of disbursements and out of pocket expenses. |
Webb v Secretary, Department of Communities and Justice [2025] NSWCATAP 47 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; L Andelman, Senior Member Catchwords: APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – grounds of appeal – prejudice – actual bias – apprehended bias – denial of procedural fairness ADMINISTRATIVE LAW – administrative review – Government Information – whether there is an overriding public interest against disclosure – balancing the public interest |
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Impala Kitchens Pty Ltd v O’Donoghue [2025] NSWCATAP 49 Appeal from the Consumer and Commercial Division Decision of: Seiden SC DCJ, Deputy President; J Redfern, Senior Member Catchwords: APPEAL – Home Building Act 1989 (NSW) – contract – form of contract – enforceability of contract – repudiation – insurance – effect of failure to insure APPEAL – Parties – Joinder – party at first instance not named as respondent on appeal – proper and necessary party LEAVE TO APPEAL – Appeals from the Consumer and Commercial Division – construction and application of cl 12, Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – question of law – fair and equitable – against the weight of evidence – significant new evidence |
Aquilina v Hawkins; Hawkins v Aquilina [2025] NSWCATAP 50 Appeal from the Consumer and Commercial Division Decision of: Dr R Dubler SC, Senior Member; J Connelly, Senior Member Catchwords: RESIDENTIAL TENANCY – the tenant was resident in New South Wales and the landlord resident overseas – the Tribunal wrongly determined that the Tribunal had no jurisdiction on the basis that it was exercising federal jurisdiction – no federal jurisdiction arises where the Tribunal is dealing with one party resident in New South Wales and the other party is overseas |
The Owners – Strata Plan No. 12185 v Brown [2025] NSWCATAP 51 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; G Burton SC, Senior Member Catchwords: REAL PROPERTY – STRATA MANAGEMENT – challenge to air conditioning by-law – Strata Schemes Management Act 2015 (NSW) s 149 |
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JRJ Group Ltd v Winter [2025] NSWCATAP 53 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; J Redfern PSM, Senior Member Catchwords: Appeal – consumer claim – Australian Consumer Law – major failure – remedies available to consumer |
Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; J Sullivan, Senior Member Catchwords: APPEAL – surcharge land tax – primary liability accepted – discretion to remit interest on reassessment under s 25 of the Taxation Administration Act 1996 (NSW) |
Aydogan v Coddington [2025] NSWCATAP 55 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; H Dixon SC, Senior Member Catchwords: Appeal – Residential Tenancy Agreement – dispute over bond – procedural unfairness by refusal to give weight to photographs – Appellant suffered no adverse consequences having regard to landlord’s evidence |
Raffoul v Wong [2025] NSWCATAP 56 Appeal from the Consumer and Commercial Division Decision of: Dr R Dubler SC, Senior Member; J Connelly, Senior Member Catchwords: LANDLORD AND TENANCY - whether leave to appeal should be granted – no basis for the grant of leave made out – whether the Tribunal failed to afford the Appellant procedural fairness – no procedural unfairness made out |
ELQ v Public Guardian [2025] NSWCATAP 57 Appeal from the Administrative and Equal Opportunity Division Decision of: ADCJ Hennessy, Deputy President; R Booby, Principal Member; M Bolt, General Member Catchwords: APPEAL – where Tribunal summarily dismissed application for administrative review – whether leave should be granted to appeal from interlocutory decision |
Adams v Commissioner of Police, NSW Police Force [2025] NSWCATAP 58 Appeal from the Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; N Kennedy, Senior Member Catchwords: GOVERNMENT INFORMATION-whether unredacted version of COPS report with respect to an event concerning a camera in the male toilets of a café in Sydney should be disclosed to the appellant in response to his access application under the Government Information (Public Access) Act 2009 (NSW)-whether the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure APPEALS-no error of law-no grounds for leave to appeal established |
Carroll and Ors v The Owners – Strata Plan no 37248 [2025] NSWCATAP 59 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; Dr K George, Senior Member Catchwords: APPEAL- whether an application under s 149(1)(c) of the Strata Titles Management Act must be brought within the time of 28 days provided for by r 23(3)(b) of the Civil and Administrative Rules |
Hunter Building Group Pty Ltd v Tonitto [2025] NSWCATAP 60 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; M Tibbey, Senior Member Catchwords: APPEAL – HOME BUILDING ACT-no issue of principle – reference to legislative preference for rectification work to be carried out by the responsible party |
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Northern Sydney Local Health District v FZK [2025] NSWCATAP 62 Appeal from the Administrative and Equal Opportunity Division Decision of: P Durack SC, Senior Member; L Andelman, Senior Member Catchwords: ADMINISTRATIVE LAW-administrative review of appellant’s decision concerning access to parts of health records - redacted information not disclosed to the respondent - whether redacted information contained personal information of third parties within the meaning of clause 3(a) of Table 14 in section 14 of the Government Information (Public Access) Act 2009 - whether redacted information fell within clause 3(f) of this Table - redacted information consisted of opinions, concerns and knowledge about the respondent communicated to employees of the appellant. APPEAL - application for Appeal Panel to recuse itself refused - actual bias – apprehended bias whether the decision concerning cl 3 (a) was legally unreasonable - whether other grounds of appeal established. |
YLO v YNA [2025] NSWCATAP 63 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; L Organ, Senior Member (Legal); Dr M Spencer, General Member (Community) Catchwords: GUARDIANSHIP — whether Tribunal failed to consider evidence - whether guardian was able to exercise the services function (s 17(1)(c) of the Guardianship Act 1987 (NSW)) EVIDENCE — no evidence - whether no evidence to support finding that guardian was not able to exercise the services function PROCEDURAL FAIRNESS — whether by conducting a hearing in the absence of the person the subject of the application for review of the guardianship order the Tribunal failed to afford that person procedural fairness PROCEDURAL FAIRNESS — whether the Tribunal gave the guardian a reasonable opportunity to present his case and to respond to allegations CONSTITUTION OF TRIBUNAL — whether the Tribunal was constituted in accordance with Civil and Administrative Tribunal Act 2013 (NSW), Sch 6 cl 4(1). |
Lawrence v Ciantar [2025] NSWCATAP 64 Appeal from the Consumer and Commercial Division Decision of: L Andelman, Senior Member; P Molony, Senior Member Catchwords: APPEALS – application to adjourn final hearing |
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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. |
