NCAT Appeal Panel Decisions Digest Issue 3 of 2026 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in March 2026: | | Meehan as trustee for Novasense Property Trust v Perry’s Performance Plumbing Pty Ltd trading as Perry’s Performance Plumbing [2026] NSWCATAP 67: An Appeal Panel upheld an appeal from the Consumer and Commercial Division of NCAT, concluding that NCAT had erroneously not accepted evidence of a contractor on the basis that, in the Tribunal’s experience, evidence of this kind (given by contractors) could not be trusted.
| | | Kim v Best Car Maintenance Pty Ltd [2026] NSWCATAP 82: This appeal related to three proceedings against the respondent before NCAT’s Consumer and Commercial Division. An Appeal Panel dismissed the appeal, agreeing with NCAT that the proceedings were subject to ‘cause of action’ estoppel and issue estoppel.
| YPH v YQC [2026] NSWCATAP 92: An appeal from NCAT’s Guardianship Division was rejected, with the structure and conduct of the hearing falling within NCAT broad power to determine its own procedure (NCAT Act, s 38(1)). Additionally, the Panel did not accept that SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, requires NCAT to give parties an opportunity to make submissions on all adverse evidence presented.
| YQW v NSW Trustee and Guardian [2026] NSWCATAP 94: An Appeal Panel declined to approve the appellant’s request to withdraw her internal appeal with NCAT, to enable an appeal to the Supreme Court of NSW, concluding that proceeding with the internal appeal would give effect to its duty under s 36(1) of the NCAT Act.
| | The Secretary, Department of Customer Service v Scopelliti [2026] NSWCATAP 97: An Appeal Panel upheld an appeal from the Occupational Division of NCAT, dismissing the respondent’s application for variation to his contractor licence, because a mandatory requirement for the application was not satisfied and the Secretary “must” dismiss any application under the Home Building Act 1989 (NSW) (HBA) where the applicant’s prior experience is unable to be verified.
| Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Was the agreement between the parties a residential tenancy agreement under the Residential Tenancies Act 2010 (NSW) or an occupancy agreement under the Boarding Houses Act 2012 (NSW)? | Grove 888 Pty Ltd v Bholon [2026] NSWCATAP 62
Appeal from the Consumer and Commercial Division S Westgarth, Deputy President; R Titterton OAM, Senior Member
In sum: An Appeal Panel allowed an appeal from the Consumer and Commercial Division of NCAT, concluding that NCAT had erred in its construction of the terms and effect of the agreement between the parties. The Panel held that the agreement between the parties was an occupancy agreement, not a residential tenancy agreement, meaning the dispute could not be resolved under the Residential Tenancies Act 2010 (NSW) (the RT Act) as it was regulated by the Boarding Houses Act 2012 (NSW) (the BH Act).
Facts: The primary issue on appeal was whether the agreement was a residential tenancy agreement and thereby regulated by the RT Act, or an occupancy agreement regulated by the BH Act. The dispute arose out of the appellant locking the respondent out of the premises occupied by the respondent, due to alleged non-payment of rent or occupancy fees.
At first instance NCAT found that the agreement fell within the terms of s 13(1) of the RT Act, not s 8(1)(c) (i.e., not an agreement under which “a person boards or lodges with another person”). Both NCAT at first instance and the Appeal Panel considered the leading Appeal Panel decision on s 8(1)(c) and s 13, Shapkin.
Held (allowing the appeal):
(i) Adopting the same approach as the Appeal Panel in Shapkin, the occupancy agreement demonstrated that the appellant “retained sufficient mastery and control over the premises such that the arrangement” falls within the exception in s 8(1)(c). As such, it was not an agreement under s 13 of the RT Act.
(ii) Three key features helped to distinguish the agreement from a residential tenancy agreement. Firstly, the proprietor could enter the resident’s room “at a reasonable time with reasonable notice and on reasonable grounds” (suggested notice usually being 24 hours). This is inconsistent with s 35 of the RT Act which only permits landlords to enter residential premises without consent in limited circumstances such as an emergency or for urgent repairs.
(iii) Secondly, the proprietor could increase the occupancy fee on four weeks’ written notice which is inconsistent with s 41 of the RT Act. Section 41 allows rent under a residential tenancy agreement to be increased only with a notice period of at least 60 days and prohibits rent increases within the first 12 months of starting a tenancy.
(iv) Thirdly, the agreement could be terminated and the resident evicted upon reasonable written notice. Contrastingly, under s 81 of the RT Act residential tenancy agreements are terminated by NCAT orders (except in cases of vacant possession) after the landlord has given appropriate notice. Here, the occupancy agreement put the proprietor in a much stronger and more flexible position to terminate the agreement without intervention by NCAT.
(v) Viewing the agreement as a whole, the agreement was in conformity with the provisions of the BH Act and not the RT Act, with the appellant’s “level of mastery and control over the premises that is much greater than permitted to a landlord under a residential tenancy agreement. | 2. Did NCAT err in refusing to accept evidence from a contractor because, based on previous experiences, evidence from contractors could not be trusted? | Meehan as trustee for Novasense Property Trust v Perry’s Performance Plumbing Pty Ltd trading as Perry’s Performance Plumbing [2026] NSWCATAP 67
Appeal from the Consumer and Commercial Division S Westgarth, Deputy President; J McAteer, Senior Member
In sum: An Appeal Panel upheld an appeal from the Consumer and Commercial Division (CCD) of NCAT, concluding that NCAT had erred on a question of law by denying the appellant procedural fairness. Specifically, NCAT did not accept a contractor’s evidence on the basis that, in the Member’s experience, evidence of this kind could not be trusted.
Facts: The appellant filed a home building application in May 2025. The application sought an order for $8,339.21 for “rectification works” and an order for an invoice (issues by the respondent) in respect of a neighbouring property, to be “declared null and void”. NCAT dismissed the application and gave oral reasons, with no written reasons requested. A notice of appeal was later lodged.
Held (allowing the appeal):
(i) The Senior Member had formed a view that the evidence tendered by the appellant in the form of a tax invoice could not be trusted and so was not accepted. However, the Panel found that there was no evidence that the person who prepared the invoice was lying in the invoice nor was “having a lend” of the appellant.
(ii) While NCAT is not bound by the rules of evidence (NCAT Act s 38(2), it was not open to NCAT to reject evidence from a particular category of witness only because earlier experiences of evidence from witnesses of the same category (in this case, subcontractors) was thought to be generally unreliable.
(iii) The Senior Member was not disposed to accept the evidence because it was not the evidence of an independent expert but was rather the evidence of a contractor who had an interest in obtaining work.
(iv) NCAT denied the appellant procedural fairness by drawing conclusions as to the reliability of the evidence tendered by the appellant for which there was no evidentiary basis. The matter was remitted to a differently constituted tribunal. | 3. Did NCAT seek to invoke federal jurisdiction when issuing consent orders in a matter between residents of different States and, as a result, did NCAT have jurisdiction to hear the matter? | Poolkerd v de Clifford [2026] NSWCATAP 69
Appeal from the Consumer and Commercial Division P Durack SC, Senior Member; N Kennedy, Senior Member
In sum: An Appeal Panel allowed the appeal and decided that NCAT did not have jurisdiction to determine the proceedings because the parties were residing in different States at the relevant time.
Facts: The premises subject to these proceedings are located in the Hunter region of NSW. The respondents (tenants) had sought orders for compensation for breach of their right to quiet enjoyment under ss 50 and 187(1)(d) of the RT Act. The appellants (landlords) had also sought an order for termination under s 93 of the RT Act in February 2025. The application commencing the appellant’s proceedings provided a PO Box in Queensland and the residential tenancy address in NSW as the addresses for the landlords and tenants respectively. In April 2025 both applications were listed together for a conciliation and hearing, and the parties conciliated an agreement which was reflected in NCAT’s consent orders.
The landlords appealed the decision, claiming that the consent orders were made based on misleading information and that NCAT failed to consider alleged breaches by the tenants (for example, not lodging the bond with the Rental Bond Board). At the appeal hearing, the Appeal Panel raised a federal diversity jurisdiction issue with the parties, given the parties appeared to reside in different States when the proceedings were commenced in the Consumer and Commercial Division of NCAT.
Held (allowing the appeal):
(i) At the time when the two sets of proceedings were commenced the appellants were residents of Queensland and the respondents were residents of NSW. This conclusion was based on the original NCAT application and a declaration stating the appellants’ address was in Queensland from 20 August 2024 to 1 June 2025. There was no suggestion that at the relevant time the respondents were not residents of NSW.
(ii) The applications before NCAT sought to invoke federal jurisdiction because they both involved a matter between residents of different States.
(iii) In substitution of NCAT’s orders, the Panel ordered that NCAT decline to determine the applications. | 4. At the time a by-law was passed by an owners corporation, was the consent of the owner required? | Lane v The Owners Strata Plan No 2404 [2026] NSWCATAP 73
Appeal from the Consumer and Commercial Division I R Coleman SC ADCJ, Principal Member; N Kennedy, Senior Member
In sum: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division, which had denied the appellants’ application to revoke the owners corporation’s (OC) resolution and reinstatement of by-law 28. The appellants claimed that the OC was required to obtain their consent, and having not done so, the resolution was invalid. The Panel allowed the appeal but remitted the matter for a re-hearing to allow the respondent to directly confront the challenge to its power to amend the by-law without the appellants’ consent.
Facts: The appellants were the registered proprietors of two lots, one being a residential unit (Lot 1) and one being a single garage (Lot 22). When the appellants first purchased the lots, the unit included exclusive use of car space 9. The respondents (OC) asserted that by-law 28 (registered in 2014) contained an error and that the exclusive use of car space 9 should have been granted to a different owner (of Lot 2) as per a “corrected” version registered in 2017. In 2023, the respondent amended by-law 28 as per ss 141 and 143 of the Strata Schemes Management Act 2015 (the SSMA) to give Lot 2 the exclusive use of car space 9. However, the appellants contend that the resolution was passed in 2023 without their written consent and was therefore invalid or should not have been made. The appellants sought an order revoking the resolution and reinstating by-law 28, relying on ss 141(5), 148 and 229 of the SSMA. NCAT was not persuaded that making an order under s 148(1)(c), repealing by-law 28 and reinstating the 2013 version, would be in the interests of all lot owners.
The appellants appealed NCAT’s decision on two grounds. First, they asserted that the respondent was required to obtain their consent to the 2023 resolution, and such consent was not obtained. The respondent contended that (prior to s 141(5) taking effect) if an OC expressed a resolution as “changing” a by-law, an owners’ consent was not required, notwithstanding s 143 of the SSMA which requires consent when an OC “makes” a common property rights by-law conferring rights on an owner. The respondent’s finding that s 143(1) of the SSMA was intended to be limited to the “making” of by-laws and “changing” them, therefore relied on a distinction between the meaning of “[making] a by-law” and “[changing]” a by-law. Second, the appellants challenged the exercise of judicial discretion by NCAT at first instance. The Panel therefore had to consider whether the change to the by-laws should have been set aside.
Held (allowing the appeal):
(i) NCAT did not err in holding that, when the resolution was passed (5 December 2023), s 141(5) of the SSMA was not in force or effect (and was not in force until 6 days later). The critical issue for determination was whether at that time the respondent required the consent of the appellants to change by-law 28. Following the decision of Ball J in James, if the resolution was valid when it was passed (on 5 December), the fact that s 141(5) (which required owner consent) was in force upon registration of the resolution on 13 December 2023, did not render the resolution (which had not been consented to) invalid. Accepting Ball J’s reasoning in James, the Panel noted that registration of a resolution simply related to when the resolution took effect.
(ii) While the legislative amendments did not have retrospective application, s 141(5) was intended to remove uncertainty regarding the requirement of owner’s consent to property by-law changes. The Panel reasoned that this amendment did not necessarily mean that s 143 should not be interpreted as having that effect prior to enactment. The Panel then concluded that if s 143 was not intended to require owner’s consent, s 141(5) materially altered, rather than clarified, that issue. Although not determinative, the enactment of s 141(5) supported the respondent’s contentions.
(iii) Section 133 of the SSMA defines “change” as meaning “amend or repeal” by-laws or adding to them. The Panel said it was “difficult to suggest a difference of substance” between “changing” and “amending” a by-law. The Panel had “difficulty” in accepting the respondent’s contention that an owner’s consent is required for an OC to “confer” rights, but not when changing by-laws to remove these rights. Having approached the statutory interpretation with “caution”, the Panel concluded that the respondent’s construction of s 143(1) could not be accepted because no other provision of the SSMA applies to “change[s]” in property rights by-laws. Such rights could then only be changed by repealing and making a new by-law (both steps which require owner consent), leaving little, if any, work for s 149 to do.
(iv) Considering the statute as a whole, the Panel was satisfied that as at 5 December 2023, s 143(1) of the SSMA required the appellant’s consent but that this did not mean that once conferred, an owner’s common property rights could never be disturbed without their consent.
(v) As to the second ground, the Panel concluded that, for over 30 years, the exclusive use of the parking spaces on the common property was utilised, without apparent objection, to enable the lot owners who did not have a garage to have a parking space. The Panel could therefore not accept that NCAT made an arbitrary decision nor could it find that NCAT failed to adequately explain its reasoning. As such, ground 2 lacked merit and to the extent necessary, leave to appeal was refused.
(vi) The Panel set aside NCAT’s orders and remitted the proceedings for re-hearing. | 5. Were the proceedings subject to ‘cause of action’ estoppel or issue estoppel? | Kim v Best Car Maintenance Pty Ltd [2026] NSWCATAP 82
Appeal from the Consumer and Commercial Division P Durack SC, Senior Member; Dr D Goldman, Senior Member
In sum: The appellant appealed in respect of three sets of proceedings before NCAT’s Consumer and Commercial Division (CCD) against the respondent. An Appeal Panel dismissed the appeal, agreeing with NCAT at first instance that the issues raised and legal claims brought in the 2024 proceedings were so connected with the subject matter of the 2023 proceedings, that the 2024 proceedings were subject to ‘cause of action’ estoppel and issue estoppel. The Panel dismissed the appeal and refused leave to appeal.
Facts: The appellant was the owner of a motor vehicle, and in 2023, she engaged the respondent to install a second-hand engine in her vehicle, having had it serviced with the respondent since at least 2016. In 2024 proceedings, the appellant sought monetary orders to address loss she alleges she suffered from defective work performed by the respondent.
The appellant had previously brought proceedings against the respondent in 2023, and in dismissing the 2024 proceedings, the NCAT Member found that issue estoppel arose, or in the alternative, the appellant could not establish her allegations to the required standard. In the 2024 proceedings NCAT found that no fresh cause of action had arisen, the claims were substantially on the same basis, the added specifics to the allegations could have been raised in the 2023 proceedings and that the appellant was simply trying to further investigate the respondent’s workmanship.
Held (dismissing the appeal, and refusing leave to appeal):
(i) The appellant raised the issue of failure to supply parts or perform work properly in the 2023 Proceedings. The Panel reasoned that regardless of when Ms Kim may have subsequently discovered additional failures of this nature, it was open to her to have investigated those failures at the time. As such, this cause of action was decided in the 2023 proceedings, rendering the 2024 proceedings subject to cause of action estoppel and issue estoppel.
(ii) In any event, any new issue raised relating to the respondent’s repair and maintenance of the appellant’s vehicle would have been subject to Anshun estoppel. The issues raised and legal claims brought in the 2024 proceedings were so connected with the subject matter of the 2023 proceedings that it was unreasonable for the issues not to have been raised in the 2023 proceedings.
(iii) NCAT was correct in its application of the issue estoppel, the appeal was dismissed, and leave to appeal was refused. | 6. Was the hearing at first instance “measured and appropriate” and does SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs require NCAT to give persons a reasonable opportunity to respond to any adverse evidence about the person? | YPH v YQC [2026] NSWCATAP 92
Appeal from the Guardianship Division A Britton, Deputy President; A R Boxall, Senior Member (Legal); C M Kennedy, Senior Member (Professional)
In sum: The appellant appealed a decision from NCAT’s Guardianship Division which had confirmed the appointment of the appellant’s brother as enduring guardian of their Mother. Two of the appellant’s grounds of appeal were that NCAT’s approach to the hearing denied her procedural fairness, and that the High Court case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63 (SZBEL), supported her proposition that NCAT was required to give her the opportunity in the hearing to make submissions on adverse evidence about her, specifically a letter from the Father. Both grounds were rejected by the Appeal Panel.
Facts: The background to this appeal is a dispute between the appellant, YPH, the Mother’s former husband and YPH’s sister and brother, concerning the decision made by YPH’s brother in 2024, in exercise of his authority as enduring guardian, to move the Mother (YNS) to live in residential aged care. The appellant believed that this decision was not in her mother’s best interests. However, other members of the Mother’s immediate family supported that decision and believed that by late 2024 the Mother would no longer be adequately cared for at home. In June 2018, the Mother executed instruments appointing her son, YQC (the Son) as her enduring guardian and attorney (the enduring appointments). In December 2024, the appellant applied to the Guardianship Division NCAT requesting review of the enduring appointments. The appellant contended that as enduring guardian and attorney, the Son was making decisions that were not in their Mother’s best interests.
NCAT did not review the operation of the instrument appointing the Son and confirmed his appointment, ultimately dismissing the appellant’s application for review. The appellant appealed the decision to confirm the Son’s appointment and the decision dismissing review. One ground of appeal considered whether NCAT failed to afford the appellant procedural fairness by failing to give her a reasonable opportunity to give evidence and make submissions at the review hearing. Specifically, the appellant argued that in the review hearing she was subject to unreasonable time limits, was interrupted and that the hearing was rushed. A second ground focused on the appellant’s claim that SZBEL required NCAT to invite her to comment on a letter from her Father which she alleged unfairly painted her as a source of conflict between siblings.
Held (refusing the appeal):
(i) NCAT’s broad power to determine its own procedure (NCAT Act, s 38(1)) permitted NCAT to determine the order each application would be addressed in and to require the parties to structure their submissions in the review hearing accordingly. The Panel held that this was entirely consistent with NCAT’s duty to resolve the real issues in proceedings justly, quickly, cheaply.
(ii) In the absence of some special vulnerability or disadvantage suffered by a party, the obligation to afford a reasonable opportunity to be heard does not require NCAT to accommodate a party’s preference about the order in which issues will be discussed during a hearing. Dealing with the applications sequentially and directing the parties to tailor their oral evidence and submissions accordingly was unremarkable and entirely orthodox.
(iii) NCAT’s statements reminding the appellant that the hearing was subject to time limits were “measured and appropriate”. The fact that NCAT did not impose time limits on the Son and the Father did not support the appellant’s contention that those imposed on her were unreasonable. Notably, neither the Son nor the Father made lengthy submissions.
(iv) The Panel rejected this ground, recognising that exchanges from the hearing did not establish the appellant’s complaint of procedural unfairness.
(v) On the second ground, the Panel held that SZBEL does not stand for the general proposition that procedural fairness requires NCAT to invite a party to respond to any adverse comment made about them by another party. It was highlighted that neither the NCAT Act, the Guardianship Act nor the Powers of Attorney Act 2003 (NSW) contain an equivalent provision to s 425(1) of the Migration Act which confers an entitlement conferred on visa applicants to be invited by the Refugee Review Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
(vi) Additionally, even if it was accepted that NCAT implicitly found that the appellant was responsible for the ensuing family conflict, there was nothing in NCAT’s reasons suggesting that this purported finding was relevant in some way to its decision to confirm the Son’s appointment as the Mother’s enduring guardian or the findings on which that decision was based. | 7. Should an appellant be given leave to withdraw an internal appeal to NCAT, to enable her to instead proceed with an appeal in the Supreme Court of NSW? | YQW v NSW Trustee and Guardian [2026] NSWCATAP 94
Appeal from the Guardianship Division A Britton, Deputy President; A R Boxall, Senior Member (Legal); Dr B McPhee, Senior Member (Professional)
In sum: An Appeal Panel declined to approve the Mother’s (appellant’s) request to withdraw her internal NCAT appeal, to enable her to proceed with an appeal to the Supreme Court of NSW. The Panel considered that proceeding with the internal appeal gave effect to its duty under s 36(1) of the NCAT Act. The Appeal Panel also refused leave to appeal decisions made by the Guardianship Division.
Facts: In January 2025, the Guardianship Division of NCAT made a guardianship order in respect of YPU and appointed her aunt, YRH, as guardian. In April 2025, YPU’s mother, YQW, made an application to NCAT requesting review of that order and the removal of the Aunt as guardian, asserting that the “current arrangement significantly restricts my ability to participate in my daughter’s life and contribute to her care, especially in financial matters”. Two months later, YQW made a further application to NCAT requesting that a financial management order be made in respect of her daughter.
The Mother appealed against NCAT’s decisions to decline to appoint a “separate representative” for the Daughter (the representation decision) and to prohibit the disclosure of a document filed by the Mother (the non-disclosure decision). Having filed these appeals in both NCAT and the NSW Supreme Court, an issue arose as to whether the Mother should be given leave to withdraw the internal appeal to NCAT.
Sch 6, cl 12(1) of the NCAT Act enabled the Mother to appeal against each decision by an appeal to an NCAT Appeal Panel (an internal appeal), or an appeal to the NSW Supreme Court. However, an internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision, and vice versa (NCAT Act, Sch 6, cls 12(3), 12(4)). The Mother’s Notice of Appeal with NCAT was filed on 8 September 2026 and her Summons seeking leave to appeal in the Supreme Court was filed on 9 October 2025.
Held (refusing request to withdraw appeal, refusing leave to appeal):
(i) Neither the NCAT Act nor the Guardianship Act 1987 (NSW) provides express guidance about the factors to consider in the exercise of the discretion to approve a request made by an appellant to withdraw an internal appeal “for the purpose of enabling an appeal to the Supreme Court” conferred by cl 12(3) of Sch 6 to the NCAT Act, or the corresponding provision, which permits the Supreme Court to approve a request to withdraw an internal appeal, cl 12(4) of Sch 6 to the NCAT Act.
(ii) The Panel recognised that it must seek to give effect to the guiding principle of the NCAT Act, “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36(1).
(iii) Hearing the internal appeal was consistent with this duty for the following reasons: the parties had filed submissions, the appellant did not notify the other parties of her intention to request withdrawal of the internal appeal, nor did she inform them of the Supreme Court proceedings until one week before the hearing of the internal appeal, the internal appeal was narrow in scope and neither complex nor novel, an appeal to the Supreme Court would delay proceedings and subject the other parties to further stress and inconvenience and given the internal appeal had been listed for hearing for over four months, the parties were ready to address the issues and time was allocated to the appeal. As such, it was the “best use” of NCAT’s and the Supreme Court’s resources to proceed with the internal appeal.
(iv) The Mother’s request to withdraw the internal appeal for the purpose of enabling an appeal to the Supreme Court was refused. Leave to appeal was refused. | 8. Did the principle of res judicata apply? | Pham v Ford Motor Company of Australia Pty Ltd [2026] NSWCATAP 96
Appeal from the Consumer and Commercial Division P Durack SC, Senior Member; S Hennings, Senior Member
In sum: An Appeal Panel refused leave to appeal and otherwise dismissed an appeal from the Consumer and Commercial Division of NCAT which concerned a claim regarding the appellant’s Ford vehicle. The Panel dismissed the appeal, applying the principle of res judicata noting that the same claim had already been heard and determined by NCAT.
Facts: In October 2024, the appellant’s vehicle became undriveable due to a sudden transmission failure. In January 2025, the appellant commenced proceedings in NCAT for compensation. NCAT dismissed the claim for lack of proof of a relevant breach of the Australian Consumer Law (NSW) (ACL) in circumstances where there was no expert evidence identifying that the failure with the vehicle’s converter was a fault which amounted to breach under the ACL. This decision was not appealed.
The appellant subsequently obtained an expert report and a quote (in the sum of $7,332.50) to repair the problem. The expert’s report explained that the converter inspection cover had been removed which had cause significant internal damage. The expert’s opinion was that this occurred because the backing plate had been riveted instead of welded and that this was a manufacturing defect. In light of this report, the appellant commenced fresh proceedings in NCAT claiming compensation, which were also dismissed.
Held (refusing leave to appeal and otherwise dismissing the appeal):
(i) The principle of res judicata is applicable.
(ii) The appellant’s rights in respect of the converter failure were determined in the decision in the first proceedings (from which no appeal was brought) meaning she can no longer seek to have them re-litigated.
(iii) The first NCAT decision was a decision on the merits as a matter of law, and the appellant had the opportunity to obtain and present better evidence in support of her case. As a litigant, she had to assemble and bring forward her whole case in the one opportunity given to litigate the claim. | 9. “Must” an application for variation to a licence under the HBA be dismissed if the applicant’s work experience cannot be verified in accordance with s 20 of the HBA? | The Secretary, Department of Customer Service v Scopelliti [2026] NSWCATAP 97
Appeal from the Occupational Division I R Coleman SC ADCJ, Principal Member; J Redfern PSM, Senior Member
In sum: An Appeal Panel upheld an appeal from the Occupational Division of NCAT, dismissing the respondent’s application for variation to his contractor licence because a mandatory requirement for the application was not satisfied. The primary issue on appeal was whether the Secretary “must” dismiss an application under the Home Building Act 1989 (NSW) HBA where the prior experience of the applicant is unable to be verified due to the death of the applicant’s supervisor.
Facts: The Secretary of the Department of Customer Service (the Secretary) originally refused the application on the basis that the mandatory practical experience requirements were not satisfied, primarily because Mr Scopelliti’s work supervisor died prior to being able to sign his application. NCAT set aside the decision of the Secretary to refuse Mr Scopelliti (the respondent) a variation to his contractor licence to include general building work under the HBA.
The appeal focused on whether, given the work could not be verified by the supervisor, it could nevertheless be found that Mr Scopelliti’s experience was verified i.e., whether the application forms satisfied the requirements of the HBA. Under s 20(1) of the HBA the Secretary “must refuse an application for a contractor licence” if the Secretary is not satisfied that the requirements under s 33C have been met. NCAT found that the application form was not limited to the pieces of paper included in the “Application Form – Individual” but also included the additional documents required by the application, such as referee statements and additional details. Ultimately, NCAT concluded that the absence of a signature on the referee form did not automatically result in non-verification, and that being a question of fact, verification was made out in light of other evidence of Mr Scopelliti’s experience (for example, the Secretary’s concession that requirements would have been met if it was verified, tax returns noting his employment and the statements of others who witnessed his supervision under the deceased).
The Secretary appealed on two grounds. Firstly, that NCAT erred in law when it found that the Secretary’s interpretation of the instrument’s meaning and effect was “too restrictive” and did not apply the correct statutory test. In doing so, the Secretary asserted that NCAT’s decision was legally unreasonable and constituted a failure to properly exercise jurisdiction. Secondly, it was claimed that NCAT erred in law by erroneously finding that the totality of the application established that the applicant’s experience had been verified, because NCAT relied on irrelevant material and failed to take into account and properly apply the requirements of the HBA.
Held (allowing the appeal):
(i) The legislative scheme provides that the Secretary “must” refuse an application if not satisfied that particular requirements are met (s 20(1) HBA). Prima facie there is no discretion “reposed” in the Secretary in circumstances where those requirements are not met.
(ii) The question of whether s 80(2) or s 80(1) of the Interpretation Act 1987 (NSW) applied, depended on whether compliance was mandatory or discretionary. Here, s 80(2) applied (i.e., s 80(1) did not ‘save’ the application) because the HBA mandated verification of qualifications and experience.
(iii) It was unnecessary to consider the asserted legal unreasonableness because if NCAT did not misconstrue the legislation, then it would be difficult to accept that its decision was vitiated by legal unreasonableness.
(iv) Given the instrument requires a supervisor to certify an applicant’s experience, and in this case, that has not happened, the requirement has not been met and the Secretary “must” refuse the application. The Panel reasoned that given the public interest in granting “appropriately qualified and experienced persons” licences under the HBA, it is “unsurprising” that the scheme does not leave room for exercising discretion where qualifications or experience are lacking.
(v) NCAT erred in its interpretation of the relevant statutory provision (an error on a question of law), meaning the appeal must be allowed. However, there was no utility in remitting the matter for a re-hearing. Instead, the Panel dismissed the respondent’s application to review the Secretary’s decision. | | | Zhuang v Van [2026] NSWCATAP 61 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: LAND LAW – Residential Tenancies Act 2010 (NSW) – denial of procedural fairness – apprehended bias – no error on a question of law established – no basis established for granting leave to appeal | Grove 888 Pty Ltd v Bholon [2026] NSWCATAP 62 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; R Titterton OAM, Senior Member Catchwords: Appeal – whether the agreement between the parties is a residential tenancy agreement regulated by the Residential Tenancies Act or an occupancy agreement regulated by the Boarding House Act – consideration of ss 8(1)(c) and 13 of the Residential Tenancies Act – statutory construction-whether time to lodge the appeal should be extended given that the Appellant has suffered an injustice with consequences going beyond the relationship between the parties. | Darley v City of Parramatta [2026] NSWCATAP 64 Appeal from the Administrative and Equal Opportunity Division Decision of: K Robinson, Principal Member; J Sullivan, Senior Member Catchwords: APPEAL – request for access to information under Government Information (Public Access) Act 2009 (NSW) – interpreting grounds of appeal – questions of law – reduced scope of request after access application made – leave - appeal dismissed | York v Council of the Law Society of New South Wales [2026] NSWCATAP 65 Appeal from the Occupational Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS – Jurisdiction - Whether an ancillary decision as to jurisdiction is not internally appealable by reason of the decision being in proceedings made for the purposes of the Legal Profession Uniform Law (NSW) within the meaning of cl 29(1)(e) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW)
OCCUPATIONS – Legal practitioner - Whether an ancillary decision as to jurisdiction in proceedings in the Occupational Division of the Tribunal is a decision made for the purposes of the Legal Profession Uniform Law (NSW) within the meaning of cl 29(1)(e) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether such a decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) | Bryson v NSW Land and Housing Corporation [2026] NSWCATAP 66 Appeal from the Consumer and Commercial Division Decision of: A Tibbey, Senior Member; S Hennings Senior Member Catchwords: APPEALS – appeal from a consent order to carry out work/repairs at the tenant’s property and other associated orders – no error of law or other appellable error established. | | Farkas v BaptistCare Community Housing Limited [2026] NSWCATAP 68 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; N Kennedy, Senior Member Catchwords: APPEAL − residential tenancy – performance order – whether additional non-smoking term valid – failure to consider claims – procedural fairness – no error on question of law | Poolkerd v de Clifford [2026] NSWCATAP 69 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; N Kennedy, Senior Member Catchwords: APPEALS – Jurisdiction – Federal matter – Tribunal has no jurisdiction | Sun v Theophilou [2026] NSWCATAP 70 Appeal from the Consumer and Commercial Division Decision of: Dr K M George, Senior Member; A Boxall, Senior Member Catchwords: APPEALS – whether utility in circumstances where orders the subject of the appeal have been carried out | | Saleem v A1 Auto Transporter Pty Ltd trading as A1 Auto Transporter [2026] NSWCATAP 72 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; M Tyson, Senior Member Catchwords: APPEAL – Australian Consumer Law – damage to motor vehicle being transported − no error on question of law or miscarriage of justice – findings of fact open on the evidence – question of whether significant new evidence had arisen – leave to appeal refused | Lane v The Owners Strata Plan No 2404 [2026] NSWCATAP 73 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; N Kennedy, Senior Member Catchwords: STRATA TITLES- whether amendment to exclusive rights by-law required consent of owners benefited by existing by-law- whether owners corporation erroneously exercised discretion to amend exclusive rights by-law | Xue v Korol [2026] NSWCATAP 74 Appeal from the Consumer and Commercial Division Decision of: G K Burton SC, Senior Member; J Sullivan, Senior Member Catchwords: LAND LAW – RESIDENTIAL TENANCY – rent reduction and compensation claims for alleged loss of facilities and services and breaches of landlord obligations – reasonable mitigation by tenants – measure of loss – Residential Tenancies Act 2010 (NSW) ss 44, 47, 52, 63, 70
APPEAL – re-determination of proceedings | | Kirby v Dental Council of New South Wales [2026] NSWCATAP 76 Appeal from the Occupational Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS – Jurisdiction - Whether an ancillary decision as to jurisdiction and an interlocutory decision refusing an extension of time to lodge an external appeal in proceedings in the Occupational Division of the Tribunal is not internally appealable by reason of the decision being in proceedings made for the purposes of the Health Practitioner Regulation National Law (NSW) within the meaning of cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW)
OCCUPATIONS – Dentist - Whether an ancillary decision as to jurisdiction and an interlocutory decision refusing an extension of time to lodge an external appeal in proceedings in the Occupational Division of the Tribunal is a decision made for the purposes of the Health Practitioner Regulation National Law (NSW) within the meaning of cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether each decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW) | Sader v Renbar Construction Pty Ltd [2026] NSWCATAP 77 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; R Titterton OAM, Senior Member Catchwords: APPEALS — whether leave to appeal should be granted —no question of principle | | Zhang v Naeini [2026] NSWCATAP 79 Appeal from the Consumer and Commercial Division Decision of: M Tyson, Senior Member; J Sullivan, Senior Member Catchwords: APPEAL – residential tenancy – extension of time to file notice of appeal - oral reasons given for decision under appeal - failure to provide transcript or recording to Appeal Panel | Ushta Pty Ltd atf The AVVM Trust v Babayan (No 2) [2026] NSWCATAP 80 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; G K Burton SC, Senior Member Catchwords: REAL PROPERTY – LANDLORD and TENANT – RETAIL TENANCY – COVENANTS - liability of original guarantor for obligations after transfer of lease - Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117
GUARANTEE and INDEMNITY - liability of original guarantor for obligations after transfer of lease – Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117
EQUITY – assignments at law – signature and notice requirements - Conveyancing Act 1919 (NSW) s 12 COSTS – ordinary basis – follow the event | | Kim v Best Car Maintenance Pty Ltd [2026] NSWCATAP 82 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; Dr D Goldman, Senior Member Catchwords: ESTOPPEL – Issue, cause of action and Anshun estoppel – Orders made in previous Tribunal proceedings | Mihalopoulos v NSW Land and Housing Corporation [2026] NSWCATAP 83 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; Dr K M George, Senior Member Catchwords: LEASES AND TENANCIES- Residential Tenancies Act 2010 (NSW) – rent reduction – agreement of parties – consent orders – circumstances in which consent orders can be set aside – extension of time | Vision Homes Pty Ltd v Ronald and Carol Bailey [2026] NSWCATAP 84 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; N Kennedy, Senior Member Catchwords: HOME BUILDING APPEAL- whether appellant establishes entitlement to adduce new evidence- whether appellant establishes entitlement to grant of leave to appeal | YNN v Public Guardian [2026] NSWCATAP 85 Appeal from the Guardianship Division Decision of: Armstrong J, President; R Booby, Principal Member; F Given, General Member Catchwords: APPEALS – procedural fairness – appeal dismissed – leave to appeal not granted | La Belle Coffee Pty Ltd v Hossain [2026] NSWCATAP 86 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – withdrawal of appeal – whether costs order should be made | | Sidhu v Sidhu [2026] NSWCATAP 88 Appeal from the Consumer and Commercial Division Decision of: J Sullivan, Senior Member; G Burton SC, Senior Member Catchwords: APPEAL – agricultural tenancy – multiple proceedings and claims – whether failure to afford procedural fairness – whether findings of fact were against the weight of evidence – no sound recording or transcript provided – no error established on the evidence before the Appeal Panel | Grabovsky v Wright [2026] NSWCATAP 89 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: APPEALS – procedure – application for interim stay – whether arguable grounds of appeal – balance of convenience | Ferdousi v The Global Beauty Group Pty Ltd [2026] NSWCATAP 90 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – Australian Consumer Law – alleged breach of consumer guarantees – alleged misleading misrepresentations – no error on question of law – findings of fact open on the evidence – whether significant new evidence – whether evidence wrongly rejected –no substantial miscarriage of justice – leave to appeal refused – appeal dismissed | Leal v Silk [2026] NSWCATAP 91 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Offer of rent rebate if tenant vacated early to enable sale of property — Tenant did not give notice to vacate but sought to take advantage of offer three months later — Landlord not bound to allow rent rebate — Tenant failed to fulfil requirements of offer — Even if offer had not lapsed by effluxion of time offer was withdrawn by landlord before tenant took the steps required to accept it | YPH v YQC [2026] NSWCATAP 92 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; A R Boxall, Senior Member (Legal); C M Kennedy, Senior Member (Professional) Catchwords: PROCEDURAL FAIRNESS — hearing rule — whether as required by Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) Tribunal gave appellant a reasonable opportunity to be heard
PROCEDURAL FAIRNESS — whether obligation to give the person the subject of the proceedings, required Tribunal a reasonable opportunity to be heard, required Tribunal to cross examine that person
PROCEDURAL FAIRNESS — principle stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 — whether Tribunal was obliged to give appellant an opportunity to respond to adverse comments made about her by another party
ADMINISTRATIVE LAW — adequacy of reasons — nature of obligation to give reasons for decision — whether Tribunal gave adequate reasons
PROCEDURAL FAIRNESS — bias — actual bias
APPEALS — NCAT —interlocutory decisions — principles governing leave to appeal
APPEALS — NCAT — power to deal with “internal appeal” by way of a new hearing, s 80(3) of the Civil and Administrative Tribunal Act 2013 | | YQW v NSW Trustee and Guardian [2026] NSWCATAP 94 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; A R Boxall, Senior Member (Legal); Dr B McPhee, Senior Member (Professional) Catchwords: APPEALS — NCAT — appeal available from “appealable Division decision” to NCAT Appeal Panel (“internal appeal”) or NSW Supreme Court — whether request by appellant to withdraw internal appeal for the purpose of enabling an appeal to the Supreme Court should be granted.
APPEALS — NCAT — principles governing granting leave to appeal an interlocutory decision –– decision to decline to order that subject person be separately represented in proceedings.
NCAT — representation –– decision to decline to order under Civil and Administrative Tribunal Act, s 45(4)(c) that subject person be separately represented in proceedings.
NCAT — non-disclosure order, s 64(1) Civil and Administrative Tribunal Act 2013 (NSW) | YQR v YQS [2026] NSWCATAP 95 Appeal from the Guardianship Division Decision of: A Britton, Deputy President Catchwords: COSTS – special circumstances – exercise of discretion to award costs
WORDS AND PHRASES – “proceedings” in Civil and Administrative Tribunal Act 2013 (NSW), s 60 | Pham v Ford Motor Company of Australia Pty Ltd [2026] NSWCATAP 96 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; S Hennings, Senior Member Catchwords: RES JUDICATA – consumer claim for defects in motor vehicle – same claim in Tribunal dismissed in earlier proceedings due to lack of proof of defect at time of supply – subsequent proceedings brought between same parties in light of expert report obtained by applicant – dismissed on basis claim had already been determined.
APPEALS- appeal dismissed – decision in primary proceedings was correct. | The Secretary, Department of Customer Service v Scopelliti [2026] NSWCATAP 97 Appeal from the Occupational Division Decision of: I R Coleman SC ADCJ, Principal Member; J Redfern PSM, Senior Member Catchwords: Builders licensing - statutory interpretation - whether Secretary “must” dismiss application where prior experience of applicant unable to be verified due to death of supervisor | | 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. |
|
|
