NCAT Appeal Panel Decisions Digest Issue 5 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 May 2025: |
YKW v Public Guardian [2025] NSWCATAP 112: An Appeal Panel refused leave to appeal and insofar as the appellant raised a question of law, dismissed the appeal from the Guardianship Division of NCAT. The appellant contended that the Tribunal failed to afford procedural fairness in deciding not to cross-examine the Public Guardian about previous decisions it had made as guardian for the subject person. The Appeal Panel held that under s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal is not required to question parties. The relevance of the SA Court of Appeal decision of TGN v MCN & Anor [2023] SASCA 62, in the context of the NSW statutory regime, was explored.
|
Houda v Seraphim [2025] NSWCATAP 135: An Appeal Panel refused leave to appeal an interlocutory decision from the Administrative and Equal Opportunity Division of NCAT, which had declined to make non-disclosure and non-publication orders under ss 49(2) and 64 of the NCAT Act. The Appeal Panel found that the appellant’s submissions on the grant of leave to appeal did not justify a reconsideration of the Tribunal’s decision, nor were any issues of public importance raised that required clarification by the Appeal Panel.
|
Trindorfer v Civil Project Management Group Pty Ltd; Civil Project Management Group Pty Ltd v Trindorfer [2025] NSWCATAP 114: An Appeal Panel allowed an appeal from the Consumer and Commercial Division, finding that NCAT’s reasoning did not clearly demonstrate that it had applied the appropriate test to assess the owner's damages. The correct question to restore the innocent party to the position that party would be in but for the breach of contract was, “what was the cost of making the work conform to the contract?”.
|
|
The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102: An Appeal Panel allowed an appeal from NCAT’s order that a strata committee member who was removed could not seek future election for one year, holding that there was no power to make orders under s 232 or s 241, which is equivalent to making an injunctive order.
|
Each case title is hyperlinked to the full decision available on NSW Caselaw. |
|
|
1. Should NCAT consider past decisions made by the Public Guardian when making a guardianship order? |
YKW v Public Guardian [2025] NSWCATAP 112 Appeal from the Guardianship Division Armstrong J, President; J Kearney, Senior Member; F Given, General Member
In sum: An Appeal Panel has dismissed an appeal from the Guardianship Division of NCAT which sought to raise procedural fairness concerns about the Tribunal’s failure to cross-examine the Public Guardian on its purportedly poor decisions while appointed as guardian. The Appeal Panel found that the Tribunal’s discretion under s 38 of the NCAT Act does not require it to question parties or witnesses, and procedural fairness was not breached. The Appeal Panel also considered the SA Court of Appeal decision of TGN v MCN, which applied a different statutory regime and where there is no equivalent merits review of the SA Public Advocate, finding that it was of limited assistance in applying the NSW provisions. The Appeal Panel confirmed that the Tribunal had correctly applied the principles outlined in the relevant authorities regarding ss 4, 15(3) and 17 of the Guardianship Act 1987 (NSW).
Facts: A 29 year old man (the Son), has been diagnosed with an intellectual disability, autism spectrum disorder and epilepsy. The Son requires a guardianship order, and NCAT decided to reappoint the Public Guardian in July 2024 for a further two years, finding that both the Stepmother and Mother were “not able” to exercise the functions of a guardian in a manner consistent with the obligations of a guardian and the principles in s 4 of the Guardianship Act. The Stepmother appealed the decision, supported by the Father, while the Mother opposed the Stepmother’s appeal. A separate legal representative for the Son said that no grounds have been established to allow the appeal.
Held (refusing leave to appeal and otherwise dismissing the appeal):
(i) The first ground of appeal concerned the alleged failure of the Tribunal to afford procedural fairness to the appellant. There were various sub-appeal grounds, including that the Tribunal had failed to cross-examine the Public Guardian on the soundness of previous decisions it had made relating to the Son’s accommodation and medical treatment. The Appeal Panel noted that while the Tribunal is entitled to inquire and inform itself as it sees fit under s 38 of the NCAT Act, this does not mean that it must ask questions of a party or a witness.
(ii) In the second ground of appeal, it was submitted that the Tribunal misunderstood, misconstrued or misapplied ss 15 and 17 of the Guardianship Act by appointing the Public Guardian, reasoning that the Public Guardian can only be appointed as a “last resort” and that the Public Guardian could not be appointed where two people had applied for guardianship. This was despite NCAT’s finding that they were not “able” to exercise the guardianship functions. A review of NCAT’s reasons did not reveal any error in the approach taken to reappoint the Public Guardian as the conclusions reached were consistent with the legal authorities, finding under s 15(3) that there were no individuals seeking guardianship who were both willing and able to perform the role. Therefore, the only option was to reappoint the Public Guardian.
(iii) The third ground of appeal contended that NCAT misapplied the principles in s 4, arguing that the Tribunal should have considered the contended “neglect” and “isolation” the Son experienced due to the Public Guardian’s decisions while appointed as guardian for the Son. Past decisions made by an existing guardian may be considered by the Tribunal under s 17(1) of the Guardianship Act to determine whether the existing guardian is no longer “able” to exercise the functions in the proposed guardianship order, however s 17(2) states that s 17(1) does not apply to the Public Guardian.
(iv) The Appeal Panel considered TGN v MCN & Anor [2023] SASCA 62 (TGN), a case relied on by the appellant, and the differences between the NSW and SA statutory regimes. In TGN, the appellant sought a review of the conduct of the SA Public Advocate (in its role as guardian) following a decline in the subject person’s health while under guardianship of the SA Public Advocate. In the SA context, the Court of Appeal found that the avenues of complaint about the SA Public Advocate “might not be efficacious” under the SA statutory framework. In contrast, the statutory provisions in NSW provide avenues to review and complain about decisions of the NSW Public Guardian, for example, s 63 of the Administrative Decisions Review Act 1997 (NSW) empowers NCAT to affirm or change the relevant decision of the NSW Public Guardian. There is no equivalent provision in SA. In allowing the appeal in TGN, the SA Court of Appeal indicated that in circumstances involving a deterioration in health, the SA Civil and Administrative Tribunal could have regard to the prior actions of the SA Public Advocate. Ultimately TGN did not assist the appellant’s case. It was determined that NCAT did not err by failing to consider the NSW Public Guardian’s previous guardianship decisions about the Son. |
2. In what circumstances will an Appeal Panel grant leave to appeal an interlocutory decision? |
Houda v Seraphim [2025] NSWCATAP 135 Appeal from the Administrative and Equal Opportunity Division Armstrong J, President, A Britton, Deputy President
In sum: An Appeal Panel refused leave to appeal a decision from the Administrative and Equal Opportunity Division of NCAT in relation to an interlocutory decision declining to make non-disclosure and non-publication orders under ss 49(2) and 64 of the NCAT Act. The Appeal Panel determined that the appellant’s arguments did not warrant the grant of leave to reconsider the Tribunal’s decision nor did the Appeal Panel think that the appellant raised questions of public importance that required clarification on appeal.
Facts: NCAT made an interlocutory decision not to grant orders to conduct a hearing in an anti-discrimination matter in private as well as requested non-disclosure and non-publication orders. The appellant sought leave to appeal on grounds that issues of principle (or public importance) were raised regarding ss 49(2) and 64 of the NCAT Act, there is limited appellate guidance on the term “desirable” in those sections, and NCAT’s decision involved errors of principle and was attended by sufficient doubt to warrant a grant of leave.
Held (refusing leave to appeal the interlocutory decision):
(i) Leave to appeal should only be granted from an interlocutory decision of NCAT where there are special features warranting appellate review. The appellant argued that, while the appeal is a question of practice and procedure, there is no principled basis for applying restraint ordinarily applied in such cases where a question of injustice flowing from an order is generally relevant. The Appeal Panel accepted that NCAT’s refusal to make confidentiality orders are not in the same category as minor interlocutory matters, although there must nonetheless be substantial reasons to allow an appeal of an interlocutory decision.
(ii) The Appeal Panel said that leave should only be granted where the appellants have shown a reasonably arguable point in relation to the errors said to have been made by the Tribunal. The Appeal Panel found that there were no demonstrable errors warranting a grant of leave to appeal:
NCAT did not give inappropriate weight to the fact that when proceedings are heard under the Anti-Discrimination Act 1977 (NSW) (ADA), NCAT exercises judicial power and there was no error in taking the view that the strength of the public interest in administrative review proceedings is “relatively strong”. The contention that NCAT did not have proper regard to the affected third parties was rejected. The Appeal Panel found that the Tribunal did not err in applying the accepted principles in relation to third party harm. The appellant required evidence that disclosure would have a demonstrated risk of harm to the third party, which would carry considerable weight, however no such evidence was before the Tribunal.
(iii) The appellant said that there is “limited appellate guidance” on the operation of ss 49 and 64 of the NCAT Act, in particular the meaning of “desirable” and the weight to be attributed to the confidential nature of the material. The Appeal Panel reviewed a number of previous NCAT decisions and considered that the Tribunal below had taken a consistent approach to the principles to be applied and factors to be considered, including open justice, the requirement for good grounds for the making of the order and the breadth of desirability, confirming that reputational harm or embarrassment alone was generally insufficient for a confidentiality order. The Tribunal had also distinguished the less onerous test in s 64 from the “necessity” test in ss 6 and 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The Appeal Panel rejected the appellant’s contention that ss 49 and 64 require reconsideration as a matter of public importance. |
3. What is the correct legal test to assess damages where there has been a breach of statutory warranties? |
Trindorfer v Civil Project Management Group Pty Ltd; Civil Project Management Group Pty Ltd v Trindorfer [2025] NSWCATAP 114 Appeal from the Consumer and Commercial Division M Deane, Senior Member; N Kennedy, Senior Member
In sum: A dispute arose between an owner and builder about the construction of a shed that did not conform with the owner’s specifications. At first instance, NCAT ordered the owner to pay outstanding invoices and for the builder to pay the costs of demolishing the unsatisfactory concrete slab. An Appeal Panel noted that it is a fine line between an error of fact that results in applying the correct test incorrectly and not applying the correct test. It was found that NCAT’s reasons did not disclose that it had applied the correct test to assess the owner’s damages and put him back to the same position he would be in but for the builder’s breach of the statutory warranties.
Facts: This appeal and cross-appeal concern a dispute arising out of the supply and construction of a shed on the owner’s land. The builder poured the concrete slab for the shed, which did not meet the owner’s expectations; the surface was not even, the slab was built above the height of the approved plans, and vehicular access to the shed was not possible. The parties met to discuss the issues with concrete slab and following that conversation, the builder was asked to leave. The owner had been invoiced for progress payments until that point, and the expert evidence at first instance was that the only practicable method of producing conformity with plans and specifications was for the slab to be demolished and rebuilt. The owner sought damages for the cost of rectifying the building defect and the builder also made a claim for cost of the contract from the owner. At first instance NCAT found that the owner was entitled to damages from the builder for breach of the statutory warranties in relation to the construction of the slab for the shed. The Tribunal also found that the builder was entitled to payment under the contract up to the point of completion of the slab.
Held (allowing the appeal in part, remitting the matter to NCAT for reconsideration of damages):
(i) One of the owner’s appeal grounds was that NCAT had applied the incorrect legal test for the assessment of the owner’s damages. It was submitted that NCAT had awarded damages to demolish the slab, but did not apply the second leg of the test in Bellgrove v Eldridge (1954) 90 CLR 613 at [617] – [618] by failing to award damages for replacing the slab, meaning that the owner was not in the same position as if the breach had not occurred. The Appeal Panel determined that the question to be asked is “What was the cost of making the work conform to the contract?”. The builder’s contention that the resultant award of damages would be for the entire contract price, was found not to be a factor that should be considered by NCAT.
(ii) In consideration of the builder’s cross-appeal, the Appeal Panel considered whether the appeal grounds raised a question of law, contested facts or raised a right of appeal under s 80(2) of the NCAT Act. At [104] of the decision, the Appeal Panel stated the principle that, “[a]n appeal is against orders not reasons and the question of law must be capable of affecting the orders the subject of the appeal”. The Appeal Panel went on to say that the builder’s criticism of NCAT’s observations below neither raises a question of law nor goes to the orders. The builder’s cross-appeal was dismissed. |
4. What is the legal test for goods being of acceptable quality under s 54 of Australian Consumer Law? |
Thompson v Dominelli Group Pty Ltd t/as Dominelli Ford [2025] NSWCATAP 106 Appeal from the Consumer and Commercial Division G Sarginson, Deputy President; J Gatland, Senior Member
In sum: An Appeal Panel allowed an appeal from a decision in the Consumer and Commercial Division of NCAT, finding that a vehicle purchased as a new motor vehicle was not of acceptable quality under s 54 of the Australian Consumer Law (ACL). It was also found that when the vehicle was stored by the respondent, who performed repairs to faulty vents at the rear of the vehicle allowing water ingress, the different causal factors leading to the vehicle being of unacceptable quality whilst in possession of the respondent were not sufficient to conclude that the respondent had breached its obligations under s 54, or as a bailee.
Facts: The appellant purchased a 2017 Ford Focus RS motor vehicle from the respondent (Ford) in 2018, which was sold with a five-year manufacturer’s warranty. In January 2019, the vehicle started leaking water through faulty rear vents, which were repaired, however the same issue arose again in March 2022, allegedly due to a manufacturing defect. Despite warranty repairs being performed, the appellant refused to collect the vehicle for approximately 3 months and demanded a full refund under s 54 of the ACL, asserting the vehicle was not of acceptable quality. It is not in dispute that there was corrosion and water damage to the vehicle after it was picked up by the appellant. Ford denied the refund request, maintaining the defect was not a major failure. The appellant made an insurance claim however it was denied because the damage was attributable to a manufacturing defect.
Held (allowing the appeal in part and sending the matter to NCAT for reconsideration):
(i) The Tribunal at first instance erred at law by making findings of fact that the faults in the rear vent were not present when the car was purchased and that the vents were dislodged by normal use in circumstances where the unchallenged expert report found that the issue was due to deficient manufacturing or Ford’s design. There was no evidence to support the Member’s findings, which were critical findings of fact with respect to the dismissal of the proceedings against Ford for breach of s 54 of the ACL at first instance.
(ii) The Appeal Panel explored the applicable legal principles and the legal test for goods being of acceptable quality under s 54 of the ACL, finding that the Member did not engage in an adequate consideration of the applicable legal principles under s 54 of ACL, particularly s 54(2)(c) and (e), and having regard to all of the matters in s 54(3). The Appeal Panel found that there was a constructive failure to exercise jurisdiction, noting that multiple factors may have contributed to the damage sustained by the vehicle, including the appellant’s delay in collecting the vehicle and Ford’s handling of repairs and storage, however, these factors are not sufficient to conclude that there was no breach of s 54. The reasons also addressed the applicable principles for the assessment of damages and available remedies under ss 271-273 of the ACL regarding actions against manufacturers of goods.
(iii) As to the law of bailment, while NCAT had correctly classified Ford’s role in storing the vehicle as a gratuitous bailment, it erred by applying the incorrect test to determine the duties and obligations of a gratuitous bailee. The correct test is whether the bailee took reasonable care of the vehicle, such as a person would take in respect of their own goods (at [173]).
(iv) With regard to whether Ford had breached its obligation to provide services with due care and skill under s 60 of the ACL (NSW), the Tribunal at first instance found that the obligation under s 60 ceased when repairs were completed. However, the Appeal Panel accepted the appellant’s submission that the ambit of “services” under s 60 is not as narrowly confined as found by the Member at first instance. The Tribunal below erred in finding that the obligation to provide services with due care and skill is limited to the services outlined in the terms of the contract. |
5. Does NCAT have powers to restrain a person who has been removed from a strata committee from seeking to be elected for a period of time? |
The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 Appeal from the Consumer and Commercial Division G Blake AM SC, Principal Member; M Tyson, Senior Member
In sum: An Appeal Panel has considered the Tribunal’s order making powers under ss 232 and 241 of the Strata Schemes Management Act 2015 (NSW) (SSM Act), finding no appealable error in removing a strata committee member from office under s 238 of the SSM Act because of a failure to perform duties with due care and diligence. However, the Tribunal had additionally ordered that the strata committee member who had been removed, be restrained from seeking to be elected as a strata committee member for a period of “not less than 1 year”. The Appeal Panel held that there was no power to make such an order.
Held (allowing the appeal in part and dismissing the majority of the appeal):
(i) The Appeal Panel dismissed the majority of the appeal which involved the award of damages under s 106(5) of the SSM Act to the lot owner who could not occupy the lot for a period of time due to water ingress.
(ii) With regard to restraint on seeking election to the strata committee, the Appeal Panel held that the power to make orders in respect of strata “disputes or complaints” under s 232 did not extend to restraining the strata committee member who had been removed under s 238 from seeking future election; and there was no power under s 241. As s 241 was equivalent to making an injunctive order, no order could be made under s 241 as that provision could “only be used as a remedy to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong” (see paragraph [117] of the decision). |
|
|
Juskey v The Owners – Strata Plan No 62732 [2025] NSWCATAP 95 Appeal from the Consumer and Commercial Division - Strata Schemes Decision of: G Sarginson, Deputy President; S de Jersey, Principal Member Catchwords: COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – long delay in filing appeal – lack of prospects of success – discretion to make a costs order – whether discretion should be exercised in favour of making a costs order |
YKV v YJI [2025] NSWCATAP 96 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; C Mulvey, Senior Member; J Le Breton, General Member Catchwords: EVIDENCE – mistake of fact – finding without evidence suitability of private manager PROCEDURAL FAIRNESS – Civil and Administrative Tribunal Act 2013 (NSW), ss 38(5), 38(6)(c) – whether Tribunal failed to afford the appellant a reasonable opportunity to respond to adverse evidence – whether by imposing limits on the time available to the appellant to make submissions the tribunal failed to afford the appellant a reasonable opportunity to put her case |
Walters v Watkins [2025] NSWCATAP 97 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior member Catchwords: APPEALS – leave to appeal – no question of principle – extension of time – no question of principle |
|
Karnauchow v Commissioner of Corrective Services [2025] NSWCATAP 99 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 – application granted in part and otherwise dismissed |
FVA v Commissioner of Police, NSW Police Force [2025] NSWCATAP 100 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; D Robertson, Principal Member Catchwords: BANKRUPTCY — Proceedings previously commenced by bankrupt — Whether administrative review proceedings in the Tribunal constitute an “action” for the purposes of s 60 of the Bankruptcy Act 1966 (Cth) — Abandonment |
YKD v YKE (No 2) [2025] NSWCATAP 101 Appeal from the Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; C Mulvey, Senior Member; M Bolt, General Member Catchwords: COSTS – special circumstances established – out of the ordinary – not exceptional - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – fixed sum awarded – party/party costs – appeal without merit – arguably weak |
The Owners - Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; M Tyson, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law LAND LAW - Strata title – Whether the owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property - Whether the owners corporation is liable to a lot owner for damages for temporary accommodation expenses for breach of statutory duty – Whether temporary accommodation costs and loss of amenity damages were a foreseeable loss suffered by the lot owner – Whether the Tribunal should have exercised the power to remove a lot owner as a member of the strata committee of the owners corporation - Whether the Tribunal had power to restrain a lot owner from acting as a member of the strata committee or as an officer of the owners corporation |
|
Bawa v The Owners-Strata Plan No 72125 [2025] NSWCATAP 104 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; R Perrignon, Senior Member Catchwords: LAND LAW -strata titles - dispute between lot owner and owners corporation about the amount of the lot owner’s contribution and payment of interest-claims by lot owner for orders under s 85 (8) and s 87 (1) of the Strata Schemes Management Act 2015 (NSW)-whether s 87 (1) gives power to the Tribunal to vary the single lot owner’s contribution due to reasons peculiar to lot owner - claim that strata manager should be removed. APPEALS – contention of bias not established - no appealable error shown in respect of substantive claims - consideration of adequacy of reasons where the Tribunal states that it adopts the submissions of the owners corporation - appealable error established in respect of order made by the Tribunal that the appellant pay the respondent’s costs of the primary proceedings. |
|
Thompson v Dominelli Group Pty Ltd t/as Dominelli Ford [2025] NSWCATAP 106 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; J Gatland, Senior Member Catchwords: APPEALS – questions of law – leave to appeal – constructive failure to exercise jurisdiction – application of wrong legal principle – errors of mixed fact and law CONSUMER LAW – s 54 Australian Consumer Law 2010 (NSW) – water ingress into vehicle – manufacturing defect – subsequent repairs under warranty – causation – principles applicable CONSUMER LAW – s 60 Australian Consumer Law 2010 (NSW) – performance of repairs – scope and extent of duty CONSUMER LAW – s 272 Australian Consumer Law 2010 (NSW) – principles applicable CONSUMER LAW – Bailment – duty of a bailee – scope and extent of duty |
Gokani-Robins Pty Ltd v The Owners – Strata Plan No 77109 [2025] NSWCATAP 107 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; R C Titterton OAM, Senior Member Catchwords: LAND LAW — Strata title — By-laws - Appeal from order of Tribunal dismissing an application that a by-law be declared invalid by reason of being harsh, unconscionable or oppressive — No question of principle |
Gabriela v The Owners – Strata Plan No. 52108 (No 2) [2025] NSWCATAP 108 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; L Andelman, Senior Member Catchwords: APPEALS – costs– special circumstances established – out of the ordinary - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – baseless appeal unsupported by evidence |
Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 Appeal from the Occupational Division Decision of: Seiden SC DCJ, Deputy President; J Ledda, Senior Member Catchwords: ADMINISTRATIVE LAW — refusal to renew a contractor licence under the Home Building Act 1989 (NSW) — effect of recent convictions for failing to report contact with children on applicant’s fitness and propriety — whether Tribunal misconstrued statute — extent to which Tribunal may go behind criminal convictions and sentences |
The Owners – Strata Plan No 12299 v Mackay [2025] NSWCATAP 110 Appeal from the Consumer and Commercial Division Decision of: D Charles, Senior Member; M Deane, Senior Member Catchwords: LAND LAW — Strata title — By-laws – maintenance and repair of lot property and common property – rights and obligations of lot owner – effect of special by-law APPEALS –whether any error on a question of law–- appeal allowed for procedural unfairness- remitted to Tribunal for redetermination |
Butto v NSW Land and Housing Corporation [2025] NSWCATAP 111 Appeal from the Consumer and Commercial Division Decision of: Dr K M George, Senior Member; M Tyson, Senior Member Catchwords: APPEAL - Residential Tenancies Act 2010 (NSW) – termination for non-payment of rent - transcript or sound recording not provided - leave to appeal refused |
YKW v Public Guardian [2025] NSWCATAP 112 Appeal from the Guardianship Division Decision of: Armstrong J, President; J Kearney, Senior Member; F Given, General Member Catchwords: APPEALS – from decision of NSW Civil and Administrative Tribunal (NCAT) to reappoint Public Guardian as guardian – no error on question of law – leave to appeal refused – no obvious factual error or unorthodox approach to fact-finding – no other basis on which leave should be granted STATUTORY CONSTRUCTION – whether NCAT misconstrued ss 15(3) and 17 of the Guardianship Act 1987 (NSW) – whether NCAT applied a wrong principle of law when appointing Public Guardian GUARDIANSHIP – whether NCAT failed to apply s 4 of the Guardianship Act 1987 (NSW) – whether NCAT failed to apply correct legal test when appointing Public Guardian PROCEDURAL FAIRNESS – whether NCAT acted in a procedurally unfair manner in conduct of hearing – no procedural fairness breach established – whether NCAT demonstrated actual or apprehended bias – no allegation of bias established |
Evans v The Owners – Strata Plan No. 40841 [2025] NSWCATAP 113 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; L Andelman, Senior Member Catchwords: APPEALS — Strata title – whether owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property – whether managing agent should be compulsorily appointed – whether wrong principle of law applied – whether leave should be granted – appeal filed out of time |
|
Nichol v Fricker [2025] NSWCATAP 115 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; C Mulvey, Senior Member Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — Dividing Fences Act 1991 (NSW) – Renewal of proceedings – Whether fence constructed in substantial compliance with orders of Tribunal ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Procedural fairness – Whether appellant denied procedural fairness when Tribunal reserved decision and directed the filing of expert reports |
McNally v Resolution Life Australasia Limited [2025] NSWCATAP 116 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; H Dixon SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – improper constitution of tribunal at first instance – decision vitiated by jurisdictional error – decision set aside APPEAL – Anti-Discrimination Act 1977 (NSW) –defence to complaint invokes federal jurisdiction – Tribunal has no jurisdiction to resolve |
Wells Group Pty Ltd v Betts (No 2) [2025] NSWCATAP 118 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; J Gatland, Senior Member Catchwords: COSTS – application to vary costs order by the respondent – application dismissed |
Commissioner for Fair Trading v PSMG Pty Ltd (No 2) [2025] NSWCATAP 119 Appeal from the Occupational Division Decision of: Balla ADCJ, Principal Member; P H Molony, Senior Member Catchwords: COSTS – interlocutory appeal against a stay order made in the Administrative and Equal Opportunity Division – each party to pay their own costs – s 60 of the Civil and Administrative Tribunal Act 2013 |
|
Lisle v Courtney [2025] NSWCATAP 121 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed |
|
Houda v Seraphim [2025] NSWCATAP 135 Appeal from the Administrative and Equal Opportunity Division Decision of: Armstrong J, President; A Britton, Deputy President Catchwords: APPEALS — where party appeals from interlocutory decision of Tribunal relating to non-disclosure, non-publication and exclusion of public from hearing —whether leave should be granted to appeal from interlocutory decision — leave to appeal refused CIVIL PROCEDURE — hearings – exclusion of public — non-disclosure and non-publication — powers of Tribunal under ss 49 and 64 of Civil and Administrative Tribunal Act 2013 |
|
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. |
