NCAT Appeal Panel Decisions Digest Issue 5 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 May 2026: | Roberts v Franks [2026] NSWCATAP 144: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division, finding that the appellants were denied procedural fairness because, being self-represented, they were unaware of their right to cross-examine the respondents’ expert witness. NCAT breached its duty to afford the appellants procedural fairness by not informing them of this right.
| Opal Construction Group Pty Ltd v Christoff; Opal Construction Group Pty Ltd v Christoff [2026] NSWCATAP 156: An Appeal Panel allowed two appeals (heard together) from NCAT’s Consumer and Commercial Division on the basis that NCAT’s decision was not fair and equitable within Sch 4 cl 12(1)(a) of the NCAT Act because NCAT applied the wrong legal principles in its findings, or otherwise made incorrect findings. This was the result of NCAT erroneously refusing to accept the appellants’ expert’s methodology for assessing loss under a contract.
| Planinac v Peak Boats Pty Ltd trading as The Adventure Boat Company [2026] NSWCATAP 160: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division where NCAT held that it had no jurisdiction to hear the applications because the claims were within federal Admiralty jurisdiction i.e., claims which could only be heard by superior courts or courts of a state. While the Panel agreed that NCAT had no jurisdiction to resolve maritime claims under the Admiralty Act 1988 (Cth) (Admiralty Act), it was not satisfied with NCAT’s factual exploration of the meaning of “ships” in this context and as such, remitted the matter to NCAT for determination consistently with the Panel’s reasons.
| Robertson v Bridge Housing Limited [2026] NSWCATAP 161: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division, finding that NCAT made an error on a question of law when it dismissed the appellant’s allegations that the landlord had breached s 50(3) of the Residential Tenancies Act 2010 (NSW) (RT Act). NCAT erroneously held that because the alleged misconduct occurred in common areas, the misconduct did not fall within the definition of “residential premises” under s 50(3). The Panel allowed the appeal because this error could have altered, in a significant way, NCAT’s assessment of the appellant’s request for an extension of time under s 41 of the NCAT Act.
| Chlochaisri v The Owners Strata Plan No 92648 & Ors [2026] NSWCATAP 162: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division on the basis that NCAT erred in making an order for costs against the appellant for the entire duration of proceedings rather than from the date at which it was held that his case no longer had a “tenable basis”. Having not conducted a hearing, NCAT was not empowered to conclude that the appellant’s case was entirely without merit.
| Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | 1. Did NCAT deny the appellants procedural fairness by not informing them of their right to cross-examine the respondent? | Roberts v Franks [2026] NSWCATAP 144
Appeal from the Consumer and Commercial Division R C Titterton OAM, Senior Member; A R Boxall, Senior Member
In sum: A decision of NCAT’s Consumer and Commercial Division (CCD) was appealed on the basis that the appellants were denied procedural fairness because, as a self-represented parties, they were unaware of their right to cross-examine the respondents’ expert witness and NCAT breached its duty to afford parties procedural fairness by failing to inform the appellants of this right. An Appeal Panel allowed the appeal and remitted the matter to NCAT, as previously constituted. The Panel ordered that the rehearing be limited to the cross-examination of the respondents’ expert witness which may or may not have changed the original NCAT orders.
Facts: The appellants and respondents were owners of two adjoining properties. The appellants served a Notice to Carry Out Fencing Work (the Notice) on the respondents under s 11 of the Dividing Fences Act 1991 (NSW) (DF Act). The Notice included details regarding the location of the fencing work, type of fence, dimensions of the fence, and the cost to each party. The original NCAT application filed by the appellants sought, among other things, to compel the respondents to provide a view on the proposition of the boundary and pay the cost of removing the encroachments on the boundary. The appellants’ alternate proposition was that, in the event that the fence could not be built on the boundary, NCAT should appoint an independent expert to consider the matter and require the parties to investigate alternative solutions. As the power to make those orders did not fall within the scope of s 14, NCAT found that it did not have jurisdiction to make the orders.
NCAT considered each of the five sections of the fence separately and in relation to each section determined (1) whether a dividing fence can be located on the boundary (2) if not, where should the dividing fence be located and (3) what design should the fence be including height and materials. NCAT was not satisfied that there were sufficient grounds to depart from the position set out in s 6 of the DF Act, that being that the cost of fencing work is to be borne equally. While there was “significant conflict” between the parties on the issue of who should instruct and manage the fencing contractor, NCAT concluded that the respondents should instruct the contractor. NCAT also ordered that the existing fence be demolished to allow the new fencing work to be carried out and that the fence be constructed in accordance with a provided fencing quote unless otherwise suggested by the respondents.
While the appellants contended 12 grounds of review, only ground 12, a denial of procedural fairness, was necessary for the Panel to consider. This ground was premised on an alleged failure by NCAT to advise the appellants of their right to cross-examine the respondents’ expert at the hearing, which raised a question of law. The appellants submitted that the respondents’ expert witness did not attend the hearing and because the appellants were self-represented, they were not aware of their right to cross-examine the respondents’ expert witness and NCAT erred by not informing them of this right.
Held (allowing the appeal):
(i) The appellants were not informed of their right to cross-examine the respondents’ expert witness at the hearing. Even assuming that NCAT had advised the appellants at the directions hearing of 16 September 2024, as claimed by the respondents (the Panel did not accept that that was the case), NCAT when conducting the final hearing had a duty to ensure that the unrepresented appellants understood that they could cross-examine a respondent’s witness.
(ii) NCAT did not explain NCAT’s procedures to the parties and did not advise them that they may ask to cross-examine the other party’s witnesses.
(iii) In the event that the appellants, having been informed of NCAT’s procedures, elected to cross-examine the respondents’ expert witness, who was not present, an adjournment would have enabled that cross-examination to occur, as several of the authorities point out.
(iv) Adopting the reasoning of an Appeal Panel in Body Sculpting Clinics (Bondi Junction) Pty Ltd v Kokkinis [2021] NSWCATAP 362 “…the reliance by the Tribunal on the absence of any request to cross-examine in arriving at its conclusions without having informed the appellant of the right to cross-examine, and to ask the appellant whether it wished to ask those witnesses questions, visited a practical injustice upon the appellant… it is not beyond the bounds of possibility that concessions may have been made in cross-examination which would have been of assistance to the appellant”.
(v) A rehearing was necessary but that hearing was to be limited to the cross-examination of the respondents’ expert witness. This may, or may not, result in NCAT revisiting order (5) of the first instance decision which dealt with the placement of the dividing fence. The other orders and findings, including order (7), that the respondents will be the only party to give instructions to the fencing contractor in relation to the carrying out of the fencing work, were not set aside.
(vi) In the rehearing the parties were not permitted to rely on evidence that was not before NCAT. As Appeal Panels have repeatedly observed, an appeal does not simply provide a losing party in the Tribunal with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Nguyen v Nguyen [2025] NSWCATAP 238 at [40]; Sader v Renbar Construction Pty Ltd [2026] NSWCATAP 77 at [110].
(vii) The Panel remitted the matter to NCAT, as previously constituted, for redetermination in accordance with these reasons. | 2. Did NCAT apply the wrong principles (or otherwise make incorrect findings) when it did not accept an expert’s methodology (use of Rawlinsons Australian Construction Handbook 2023) to assess loss under construction contracts? | Opal Construction Group Pty Ltd v Christoff; Opal Construction Group Pty Ltd v Christoff [2026] NSWCATAP 156
Appeal from the Consumer and Commercial Division G Blake AM SC, Principal Member; D Robertson, Principal Member
In sum: An Appeal Panel allowed two appeals (heard together) from NCAT’s Consumer and Commercial Division (CCD) on the basis that the decision was not fair and equitable within Sch 4 cl 12(1)(a) of the NCAT Act because NCAT applied the wrong legal principles in its findings, or otherwise made incorrect findings. The Panel granted leave to appeal in both appeals and then, under s 81 of the NCAT Act, made orders to set aside those made at first instance but remitted the issue of expectation damages for redetermination by the CCD. The focus of the appeal was whether NCAT’s finding that Mr Hadden, the expert brought in by Opal Construction Group Pty Ltd (Opal Construction), did not adduce evidence sufficient to establish Opal Construction’s loss, was erroneous. Satisfied that NCAT erred in refusing to accept Mr Hadden’s methodology for assessing loss.
Facts: The two internal appeals heard together were from two NCAT proceedings involving two contracts for the construction of a duplex on a property. The disputes arose under the Home Building Act 1989 (NSW) (HB Act) between each of the respondents (the owners of unit 1 and the owners of unit 2) and the appellant Opal Construction. The appellant was the builder which (under separate contracts) had agreed to carry out residential building work by constructing a duplex on the property. In June 2023, after entering into these individual contracts, Opal Construction commenced proceedings in NCAT’s Consumer and Commercial Division claiming damages for loss of profits because neither respondent paid the deposit under their respective contracts. In May 2025, NCAT ordered that Opal Construction pay 90% of the respondents’ costs in each proceeding. In August 2025 NCAT dismissed Opal Construction’s claim for damages for loss of profits against the respondents in each proceeding.
Opal Construction appealed these decisions in September 2025 and the key issues were (1) whether time should be extended for Opal Construction to commence the appeals (2) if so, whether NCAT incorrectly found that there was insufficient evidence to prove Opal Construction’s claim for damages for loss of profits and (3) if so and each appeal is allowed with consequential orders, whether the appeal against each costs order should be allowed with consequential orders. Opal Construction submitted that NCAT misapplied the principles in North Sydney Leagues Club Limited v Synergy Protection Agency Pty Limited (2012) 83 NSWLR 710; [2012] NSWCA 168 (NSLC v SPA) at [46] and that Mr Madden (who gave expert evidence) was not required to conduct a review of Opal Construction’s profitability based upon its own business records but instead was required to assess whether the contract price would allow a profit once the fair and reasonable costs of completing the build required under the contract was achieved.
Held (granting leave to appeal and allowing both appeals, remitting issue of expectation damages to the CCD):
(i) In circumstances where Opal Construction did not in its written submissions explain why any of grounds 1 to 19 raised a question of law within s 80(2)(b) of the NCAT Act, and its counsel notwithstanding the Panel’s request did not articulate the questions of law raised on the appeal, the Panel was not satisfied that any ground raised with sufficient particularity a question of law. It followed that the appeals were not as of right and Opal Construction needed to obtain leave to appeal.
(ii) Time should be extended for Opal Construction to commence the appeals. Having regard to the four factors identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22(3)], the length of the delay was short, the reason for the delay was explained, Opal Construction had a fairly arguable case and there was no evidence of any prejudice that would have been suffered by the owners after a seven day delay in the commencement of the appeals.
(iii) NCAT did not misapply the principles in NSLC v SPA as it found that Opal Construction’s failures to have led any evidence of its operating expenses was a neutral factor and NCAT did not find that Opal Construction was not entitled to damages because of uncertainty as to its profits under each contract. Rather, NCAT regarded the evidence relied on by Opal Construction as not being sufficient to establish what the company had lost as a result of the contracts.
(iv) NCAT erred in finding that Mr Madden had not adduced evidence sufficient to establish its loss because it did not accept his methodology of using Rawlinsons, Australian Construction Handbook 2023 (Rawlinsons). The Panel reasoned that in preparing his expert report Mr Madden should not have been provided with business records as to operating expenses, the Panel could not accept that Rawlinsons did not provide a proper foundation for the assessment of costs of construction under a building contract, and the fact that Opal Construction did not provide a written estimate of the project cost to Mr Madden did not prevent him, as an expert, from constituting sufficient evidence to establish its loss.
(v) Opal Construction may have suffered a substantial miscarriage of justice because the 22 August 2025 decision was not fair and equitable within Sch 4 cl 12(1)(a) of the NCAT Act by reason that NCAT applied the wrong principles in its findings, or otherwise made incorrect findings, as to the sufficiency of the evidence of Mr Madden relied upon by it in support of its claim for damages. As such, the application for leave to appeal on these grounds was granted and the appeal was allowed with orders 1(a) and 1(c) of the 22 August 2025 decision to be set aside.
(vi) The Panel was also satisfied that this error “constituted an injustice was [was] reasonably clear, in the sense of going beyond what is merely arguable. To leave this error uncorrected would [have given] rise to a substantial miscarriage of justice.”
(vii) The issues of whether Opal Construction is entitled to any, and if so, what expectation damages for breach of contract should be remitted to the CCD for reconsideration without further evidence pursuant to s 81(a), (c) and (e) of the NCAT Act. | 3. Did NCAT err in its assessment of whether the appellant’s claim was a “maritime claim” under the Admiralty Act 1998 (Cth) therefore depriving NCAT of jurisdiction to hear the claim? | Planinac v Peak Boats Pty Ltd trading as The Adventure Boat Company [2026] NSWCATAP 160
Appeal from the Consumer and Commercial Division A Bell SC, Senior Member; E Bishop SC, Senior Member
In sum: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division (CCD) which held that NCAT had no jurisdiction to hear the applications before it because the applications were within federal Admiralty jurisdiction i.e., claims which could only be heard by superior courts or courts of a state. While the Panel agreed that NCAT had no jurisdiction to resolve maritime claims under the Admiralty Act 1988 (Cth) (Admiralty Act), it was not satisfied with NCAT’s factual exploration of the meaning of “ships” in this context and as such, remitted the matter to NCAT for determination consistently with the Panel’s reasons.
Facts: NCAT dismissed two applications brought by the appellant on the basis that it had no jurisdiction to determine either application. NCAT concluded that it was not a Court and had no jurisdiction when a dispute involves a claim within federal Admiralty jurisdiction, referring to ss 9 and 10 of the Admiralty Act.
NCAT stated that the claims fell within federal Admiralty jurisdiction “as either ‘in rem’ or ‘in personam’ claims” which were claims that only a “superior court” or a “court of a state” could deal with respectively. NCAT referred to and relied on China Shipping (Australia) Agency Co Pty Ltd v D V Kelly Pty Ltd [2010] NSWSC 1556; (2010) 79 NSWLR 650 (China Shipping) to support the conclusion that it has no jurisdiction to hear claims falling within s 9 of the Admiralty Act, as well as consumer claims under the Fair Trading Act 1987 (NSW) and the Australian Consumer Law when the claim also involves a maritime claim under the Admiralty Act, because the claims would principally fall within federal admiralty jurisdiction.
The appellant contended that NCAT wrongly concluded that it had no jurisdiction to determine his claims and that he was denied procedural fairness. The appellant asserted that at the hearing he was given no prior warning about the jurisdictional issue relating to the Admiralty Act, and as a result, he was not given a proper opportunity to consider and reflect on the issue. The appellant also contended that the NCAT Member pre-judged the matter, that the hearing was rushed, and that he did not have a fair opportunity to present all the relevant facts. The primary issue considered by the Appeal Panel was whether the appellant’s claims were “maritime claims” under the Admiralty Act. As such, NCAT had to make certain findings of fact to decide if its jurisdiction to determine whether what otherwise appeared to be consumer claims were excluded by the terms of the Admiralty Act.
Held (allowing the appeal):
(i) The ground of appeal relating to procedural fairness could not be considered as there was no independent and reliable record of what occurred at the hearing. This was because, despite being ordered to provide all the evidence relied on by NCAT and the sound recording or transcript of the first instance NCAT decision, the appellant did not provide the Appeal Panel with either the sound recording or transcript.
(ii) NCAT was undoubtedly correct in holding that it was not a court of a State and that by virtue of ss 9 and 10 of the Admiralty Act NCAT had no jurisdiction where a dispute involves a maritime claim within the meaning of the Admiralty Act.
(iii) NCAT’s factual exploration of the meaning of “ships” within the Admiralty Act was limited to stating that the vessels were to be used or intended to be used on tidal waters. This finding would preclude the vessels from being treated as “inland waterways vessels” and thus would exclude them from the definition of “ship” in s 3 of the Admiralty Act on that basis. NCAT then held that the two claims fell within federal Admiralty jurisdiction as either “in rem” or “in personam” claims but did not provide a factual basis for this conclusion. The Panel found that “a more rigorous and transparent process of jurisdictional fact finding would be required before it could be concluded that the Tribunal did not have jurisdiction in relation to [the appellant’s] claims…”
(iv) While the Panel was in “no position to make findings of fact” its brief statutory analysis revealed that there did not appear to be any ground under s 4 permitting the appellant’s first claim to be characterised as a “maritime claim”. In the Panel’s view, the second claim would also not be a “maritime claim” within the meaning of the Admiralty Act.
(v) The appeal was allowed and the matter was remitted to NCAT for determination, and it would be “preferable” for the Tribunal to be constituted differently. | 4. Did NCAT err in concluding that the definition of “residential premises” under s 50(3) of the Residential Tenancies Act 2010 (NSW) does not include common areas in social housing complexes? If so, did this affect NCAT’s consideration of the appellant’s request for an extension of time under s 41 of the NCAT Act, therefore amounting to an error on a question of law? | Robertson v Bridge Housing Limited [2026] NSWCATAP 161
Appeal from the Consumer and Commercial Division Dr K George, Senior Member; J Sullivan, Senior Member
In sum: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division (CCD) as NCAT made an error on a question of law when it dismissed the appellant’s allegations that the landlord had breached s 50(3) of the Residential Tenancies Act 2010 (NSW) (RT Act). NCAT erred in concluding that the landlord’s s 50(3) duties did not extend to the alleged misconduct because that conduct took place in common areas which, NCAT found, were not included in the definition of “residential premises” under s 50(3). While this ground was itself dismissed because it was not material to the outcome, the appeal was allowed on Ground 5 because this error could have altered, in a significant way, NCAT’s assessment of the appellant’s request for an extension of time under s 41 of the NCAT Act.
Facts: The tenant (the appellant) first commenced proceedings in NCAT in July 2024, alleging breaches by the landlord (the respondent, Bridge Housing Ltd) of its duty under s 50(3) of the RT Act to “take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises”. The tenant claimed compensation under s 187(1)(c) of the RT Act for non-economic loss over a five year period from 2019-2024.
In this application to NCAT, the tenant made various complaints and allegations regarding actions of her neighbours (and their dogs) around the social housing complex where she lived, which caused her distress. All of the alleged events occurred within common areas of the complex. A tenant must prove two elements to establish breach of s 50(3) of the RT Act. First, that the neighbouring tenants interfered with the tenant’s reasonable peace, comfort or privacy in using the residential premises and second, that the landlord failed to take all reasonable steps to prevent such interference. NCAT noted that s 50(3) is limited to a “residential premises” which are the parts of a premises “used or intended to be used as a residence” and that the common areas of an apartment complex do not form part of the “residential premises”. NCAT at first instance therefore dismissed the application. The two key issues in the appeal were: first, NCAT’s interpretation of “residential premises” as not including common areas; and secondly, whether NCAT should have exercised its discretion under s 41 of the NCAT Act to grant an extension of time beyond the 3 month limit.
Held (allowing the appeal in part):
(i) NCAT made an error on a question of law because it applied the wrong legal principle by proceeding on the basis that “events that occurred in the common areas” could not give rise to a breach of the tenant’s right to quiet enjoyment for the purposes of s 50(3) of the RT Act and/or cl 12.3 of the tenancy agreement.
(ii) In Eliezer v Residential Tribunal & Ors [2001] NSWSC 1092, McClellan J considered s 22(1)(b) of the RT Act, the predecessor of s 50(2). The provisions were expressed in essentially the same terms. At [36] his Honour expressed the view that “… the obligation which falls upon the landlord is confined to matters over which the landlord has physical and legal control...”. The Panel held that the landlord’s obligation pursuant to s 50(3) of the current RT Act extended to matters over which the landlord has physical and legal control.
(iii) Here, the landlord had tenancy agreements with each tenant in the social housing complex. It follows that the landlord “possessed the salient physical and legal control to ensure its other tenants did not, in their use of the common property, interfere with the reasonable peace, comfort or privacy of the appellant”.
(iv) Further, s 50(3) relates to the tenant “using” the residential premises which, as per s 3, includes not just the premises, but any land occupied with the premises. As such, the Panel concluded that the tenant “using” the residential premises in s 50(3) extended to the use of the common areas, such as paths, driveways, gardens and grassed areas.
(v) Despite this error on a question of law, the error made no difference to the outcome and therefore the appeal on that ground was dismissed. This was because the tenant failed to prove that the landlord did not take all reasonable steps to ensure the other tenants did not interfere with her quiet enjoyment.
(vi) While a decision made in the exercise of a statutory discretion can only be overturned in limited circumstances on a question of law (House v The King (1936) 55 CLR 499 at 504-505), it was clear in this case that NCAT acted upon a wrong principle (that being its interpretation of s 50(3), as above). As such, the exercise of its discretion involved a House v The King type of error.
(vii) Section 80(2) of the NCAT directed that leave of the Appeal Panel was required because NCAT’s decision concerning an extension of time was within the definition of an “interlocutory decision” in s 4(1) of the NCAT Act. The Panel granted the tenant leave to appeal regarding the refusal of an extension of time because it was satisfied there was an injustice that was reasonably clear. This was because NCAT did not articulate to what extent, if any, its assessment of the strengths of the tenant’s case included an assessment of the second element (i.e., whether the landlord failed to take all reasonable steps). As such, the error in the first element of s 50(3) (i.e., erroneously finding that common areas were not captured by the term “residential premises”) could have altered in a significant way NCAT’s assessment of the strengths of the tenant’s case and its calculus in relation to the appropriate exercise of discretion, thus affecting the outcome.
(viii) Leave to appeal was granted and the appeal was allowed on this ground. | 5. Did NCAT err in awarding costs against the appellant for the entire duration of proceedings rather than from the date at which the claim was deemed to have no “tenable basis”? | Chlochaisri v The Owners Strata Plan No 92648 & Ors [2026] NSWCATAP 162
Appeal from the Consumer and Commercial Division I R Coleman SC ADCJ, Principal Member; H Woods, Senior Member
In sum: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division (CCD) on the basis that NCAT erred in making an order for costs against the appellant for the entire duration of proceedings, rather than from the date at which it was held that his case no longer had a “tenable basis”. Having not conducted a hearing, NCAT was not empowered to conclude that the appellant’s case was without merit. The Panel re-exercised NCAT’s discretion and varied NCAT’s orders such that the appellant was required to pay the respondents’ costs of proceedings on an ordinary basis or as agreed or assessed from 27 March 2025.
Facts: The matter came before NCAT in October 2025 as a result of individual lot owners seeking an order for costs. NCAT noted that the cost application arose from a “lengthy vexed dispute involving building rectification work and the extension of the appointment of a compulsory Strata Manager pursuant to s 237(7) of the Strata Schemes Management Act 2015 (NSW) (SSMA)”.
NCAT accepted, consistent with authority, that establishing circumstances “out of the ordinary” was sufficient to constitute “special circumstances” pursuant to s 60 of the NCAT Act. Having considered the basis of the appellant’s claims in the substantive proceedings, NCAT found that the appellant “commenced and maintained (his) application for more than half a year solely because of his subjective and unsubstantiated speculation that the Scheme will be in a dysfunctional state if the compulsory appointment is not extended (and expired on 20 March 2025)”. NCAT also held that the “only probable inference” it could draw from the appellant’s continuance of the proceedings between 20 March 2025 and 12 June 2025 was that he “calculated this last minute withdrawal to vex the respondents at their expense and to avoid an adverse finding and costs order on the scheduled final hearing on 16 June 2025”.
The appellant appealed NCAT’s decision alleging that it erroneously found that his substantive application was lacking in substance, and that it erred by “intermingling” the conclusions in relation to s 60(3)(c) and (e) and s 63(b) and (f) of the NCAT Act, in circumstances where each conclusion concerned “two separate reasoning processes which ought to have been considered as separate and distinct”. In the alternative, the appellant pleaded that if NCAT was justified in awarding costs against him, it erred on a question of law by failing to limit the costs payable by reference to the parties’ “walk away” offers to settle.
Held (allowing the appeal):
(i) The grounds advanced by the appellant asserted errors on a question of law and were therefore appealable errors. The appellant accepted, correctly, that, as an award of costs involves the exercise of discretion, for the appeal to succeed, it was necessary to establish one of the categories of error identified by the High Court in House v R (1936) 55 CLR 499; [1936] HCA 40, rather than simply establishing that the Panel should on discretionary grounds, have substituted its decision for the decision of NCAT at first instance. As such, the Panel considered whether, prior to 27 March 2025 NCAT at first instance erred by finding that the appellant’s application had “no prospects of success” or lacked a tenable basis in fact or law.
(ii) The decision to award costs from the commencement of proceedings until their completion was erroneous. The evidence did not support a finding that the appellant’s substantive case had no tenable basis in fact or law, and while his case may have been “weak” and may have been found to have lacked a tenable basis had it been finally determined on its merits, by conducting a hypothetical hearing NCAT was not able to make those findings.
(iii) Contrary to the presumption created by s 60(1) of the NCAT Act, unjustifiably finding an absence of tenable basis in fact or law is tantamount to finding that costs followed the event (citing DJH v Public Guardian [2022] NSWCATAP 34).
(iv) As of 27 March 2025, the appellant’s case had no tenable basis in law or fact. The appellant’s subsequent rejection of “walk away” offers were unreasonable and constituted conduct “comfortably” within the provisions of s 60(3)(a), (b), (f) or (g) of the NCAT Act. NCAT’s discretion to award costs was thereby enlivened and was properly exercised as and from that date. The appellant did not indicate that he intended to withdraw his application until 12 June 2025. The Panel did not accept that because the offer on 19 May 2025 involved the appellant paying some costs, his rejection of this offer was not unreasonable. The appellant always had the opportunity to accept the offer subject to, for example, suggesting that costs be for an identified and limited period.
(v) Considering the number of opportunities the appellant had to “walk away”, his liability for costs extending until the orders of 16 June 2025 was within NCAT’s discretion. By 12 June 2025 it was probable that costs would have been reasonably incurred by the respondents in anticipation of the resumption of the proceedings on 16 June 2025.
(vi) Although NCAT was entitled to be sceptical about the merits of the appellant’s case, without a hearing it was not open to NCAT to find the absence of a basis in law or fact.
(vii) The Panel re-exercised NCAT’s discretion and varied the orders to provide that the appellant pay the respondents’ costs of proceedings on an ordinary basis or as agreed or assessed from 27 March 2025. | | | Lemmermann v Hunter Homes Pty Ltd [2026] NSWCATAP 140 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; N Kennedy, Senior Member Catchwords: APPEALS – questions of law – leave to appeal – failure to engage with clearly articulated case – constructive failure to exercise jurisdiction BUILDING and CONSTRUCTION – HOME BUILDING – contract - unauthorised variations – price increases | Lirantzis v Calligas [2026] NSWCATAP 141 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; Dr D Goldman, Senior Member Catchwords: APPEAL – COSTS – rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – costs follow the event – effect of Calderbank letter | Richards v Morgsbuild Pty Ltd [2026] NSWCATAP 142 Appeal from the Administrative and Equal Opportunity Division Decision of: G Blake AM SC, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – question of law – no question of law identified by legal representatives – LEAVE to appeal – considerations – leave to appeal granted – failure by the Tribunal to engage with clearly articulated argument | | Roberts v Franks [2026] NSWCATAP 144 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; A R Boxall, Senior Member Catchwords: APPEALS – question of law – denial of procedural fairness – failure of the Tribunal to inform an unrepresented litigant of their right to cross-examine the other parties’ expert | TFN Constructions Pty Limited v Bertie [2026] NSWCATAP 145 Appeal from the Consumer and Commercial Division Decision of: A Balla DCJ, Principal Member; P H Molony, Senior Member Catchwords: BUILDING & CONSTRUCTION - appeal from interlocutory decision to refuse application to amend defence – leave refused | de Robillard v Vanguarde Property Management Pty Ltd [2026] NSWCATAP 146 Appeal from the Consumer and Commercial Division Decision of: K Robinson, Principal Member; S Hennings, Senior Member Catchwords: APPEALS – Appeal from a termination and possession order for non-payment of rent - apprehended bias – failure to recuse – denial of procedural fairness – failure to consider evidence and mandatory provisions – failure to give adequate reasons – no error on a question of law established - costs | Chapman v Falcone [2026] NSWCATAP 147 Appeal from the Consumer and Commercial Division Decision of: Dr K George, Senior Member; J Sullivan, Senior Member Catchwords: APPEAL – residential tenancy – whether time to file notice of appeal should be extended – whether appellant demonstrated error on a question of law or on any other ground | Mashat v Build Property Pty Ltd [2026] NSWCATAP 148 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; Dr D Goldman, Senior Member Catchwords: APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Claims by owner against builder — Whether owner is entitled to remedy against each builder who breached statutory warranties — Whether terms implied in building contract — Whether owner is entitled to damages for increased costs due to delay — Whether owner is entitled to damages for loss of rent due to delay | Shen v The Owners – Strata Plan No. 9751 [2026] NSWCATAP 149 Appeal from the Consumer and Commercial Division Decision of: H Woods, Senior Member; S Hennings, Senior Member Catchwords: Appeals – Whether there was authority to commence legal proceedings – strata approval of works to an individual lot – different legal approval regimes – denial of procedural fairness – no error of law or other appellable error established. | | Pioneer Eagle Pty Ltd v Basha [2026] NSWCATAP 151 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; G Blake AM SC, Principal Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power - Permitted use of the premises is “massage and beauty” - Whether the use of the premises is a prescribed business under the Retail Leases Act 1994 (NSW) – What is the predominant use of the premises | Australian Trades Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATAP 152 Appeal from the Administrative and Equal Opportunity Division Decision of: Dr J Lucy, Principal Member Catchwords: APPEALS – PRACTICE AND PROCEDURE – whether appellant should be granted leave to appeal from Tribunal’s decision to dismiss appellant’s application to set aside summons – whether appellant has identified an issue of principle – whether relevance of categories of documents is to be determined in merits review proceedings by reference only to facts currently in dispute or whether relevance is to be assessed by reference to broader issues between the parties - whether appellant would suffer a substantial injustice if leave to appeal were refused | The Owners – Strata Plan No 83678 v Khatib [2026] NSWCATAP 153 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; D Goldstein, Senior Member Catchwords: LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 149 — Whether owners corporation had unreasonably refused to make a common property rights by-law LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 126 —Approval of alterations to common property — Submission of a by-law to a general meeting constitutes a sufficient request for approval | The Owners – Strata Plan No YVK v YVP [2026] NSWCATAP 158 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; S de Jersey, Principal Member Catchwords: COSTS –special circumstances – prospect of success of appeal - no disentitling conduct | YWC v YTX [2026] NSWCATAP 159 Appeal from the Guardianship Division Decision of: I R Coleman SC ADCJ, Principal Member; A Boxall, Senior Member; Dr B McPhee, Senior Member Catchwords: APPEALS — Guardianship and financial management — whether appellants should be granted leave to rely on new evidence — whether Tribunal erred on question of law in finding appellants lacked standing to apply for guardianship and financial management of person with whom their interests were engaged in strata plan proceedings — whether appellants should be granted leave to appeal | | Robertson v Bridge Housing Limited [2026] NSWCATAP 161 Appeal from the Consumer and Commercial Division Decision of: Dr K George, Senior Member; J Sullivan, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – tenant of a social housing complex – claim for loss of quiet enjoyment – actions of neighbouring tenant in common areas | Chlochaisri v The Owners Strata Plan No 92648 & Ors [2026] NSWCATAP 162 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; H Woods, Senior Member Catchwords: Appeal against order for costs - whether appellant demonstrates error on question of law- whether Appeal Panel should re-exercise discretion of Tribunal - whether partial costs should be awarded | Munday v Raymond Terrace Property Services Pty Ltd t/a Osborn George [2026] NSWCATAP 163 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; K Merrick, Senior Member Catchwords: APPEAL - claim against agent for failure to commence proceedings against former tenant for compensation - agent had terminated management agency agreement - failure by landlord to take action against tenant in light of termination of agency agreement - no error of law or other appeal ground – appellant bound by prior Tribunal decision which had not been appealed | Vassios v Tiniakos [2026] NSWCATAP 164 Appeal from the Consumer and Commercial Division Decision of: N Kennedy, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS — right of appeal — scope of right — error of law – No error on a question of law established
APPEALS — leave to appeal — principles governing – leave refused | Grech v Heartland Hyundai Pty Ltd [2026] NSWCATAP 165 Appeal from the Consumer and Commercial Division Decision of: N Kennedy, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – Contract void ab initio – Mistake of fact – Australian Consumer Law - Damages – Need to establish suffering of loss and damage | YPX v YRJ [2026] NSWCATAP 169 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; C A Mulvey, Senior Member (Legal); M E Bolt, General Member Catchwords: LEAVE TO APPEAL – whether right to appeal from an internally appealable decision abates upon the death of the person the subject of the decision
GUARDIANSHIP – whether Tribunal failed to “have regard to” the views of the person – obligation to “have regard to” mandatory considerations, s 14 of Guardianship Act 1987 (NSW)
GUARDIANSHIP – appointment of a guardian – whether Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act
PROCEDURAL FAIRNESS – whether failure to consider material lodged by party constitutes a denial procedural unfairness – whether failure was material to Tribunal’s ultimate decision. | | 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. |
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