NCAT Appeal Panel Decisions Digest Issue 6 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 June 2025: |
Nuset Group Pty Ltd v Whitehead [2025] NSWCATAP 127: An Appeal Panel has confirmed that the characterisation of a transaction is evaluated as a matter of substance by reference to the dealings of the parties, finding that a trading name that states “auction” does not mean that consumer guarantees do not apply.
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FZK v Secretary, Department of Communities and Justice (No 2) [2025] NSWCATAP 144: An Appeal Panel refused to use the ‘slip rule’ powers in s 63 of the Civil and Administrative Act 2013 (NSW) to amend a reference to “extreme prejudice” in the summary of the appellant’s submissions in the reasons for a decision, which it was contended the appellant did not specifically submit. The Appeal Panel did not find that there was a slip, noting that the tenor of the oral submissions was sufficiently consistent with the way in which the submissions were summarised in the reasons.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. What is an “auction” for the purposes of applying ss 54 and 55 of the Australian Consumer Law (ACL)? |
Nuset Group Pty Ltd v Whitehead [2025] NSWCATAP 127
Appeal from the Consumer and Commercial Division Jan Redfern PSM, Senior Member
In sum: An Appeal Panel has dismissed an appeal from the Consumer and Commercial Division of NCAT that had found at first instance that a vehicle sold by a licensed motor dealer in a purported “on line auction” had not been sold at auction, was not of acceptable quality under s 54 of the Australian Consumer Law (ACL) and not fit for purpose under s 55 of the ACL. At first instance, NCAT also found that there was a “major failure” under s 260 of the ACL and that the consumer had rejected the goods within a reasonable period of time under ss 259 and 262 ACL. The dealer contended on appeal that consumer guarantees did not apply because the vehicle was sold with a “Form 11 Auction Notice” and the dealer’s business name was “Sydney Auction Online”. The Appeal Panel held that this claim had no bearing on the characterisation of the transaction which is evaluated as a matter of substance by reference to the dealings of the parties.
Facts: The trading name of the appellant is “Sydney Auction Online”. The applicant at first instance (respondent to the appeal) purchased a second-hand van from the appellant, which was sold with a “Form 11 Auction Notice”. On the drive home after the sale, the van broke down and had to be towed. An application was made to NCAT in November 2024 for a refund with respect to the sale of an allegedly faulty van from both the director and the company. At first instance, the application against the director was dismissed and an order was made for the company to pay damages representing a refund for the purchase price paid for van.
Held (refusing leave to appeal and dismissing the appeal):
(i) The appellant submitted that the van was sold by way of auction and therefore consumer guarantees did not apply to the sale. The Appeal Panel held that there was no error of law, or an error giving rise to leave to appeal, in NCAT’s finding that there was no genuine auction, and the ACL consumer guarantees applied. The Appeal Panel held (at [123]) “the name of a trading entity and the reference to “Form 11 Auction Notice” has no bearing on the characterisation of the transaction, which should be evaluated as a matter of substance by reference to the dealings of the parties”. was not of acceptable quality under s 54 of the ACL and not fit for purpose under s 55 of the ACL.
(ii) The appellant contended that NCAT erred in not accepting the appellant’s argument that a replacement engine (at a cheaper cost than a full refund entitlement under the consumer guarantees), would rectify the vehicle. The Appeal Panel accepted that the Tribunal had rejected the late affidavit evidence because it was not relevant to the issues in dispute, and it would have otherwise been unfair to the applicant. In rejecting this appeal ground and refusing leave, the Appeal Panel noted that the evidence would not have assisted the appellant in any event and that there was no substantial miscarriage of justice. |
2. Does NCAT have jurisdiction to consider a consumer claim brought by a foreign company? |
Catallyze Pty Ltd v JAB Holdings New Zealand Limited [2025] NSWCATAP 140 Appeal from the Consumer and Commercial Division E Bishop SC, Senior Member; P H Molony, Senior Member
In sum: The parties entered into an agreement for the provision of professional services, however one of the parties was not with an Australian Company. At first instance the Tribunal awarded damages to the respondent on appeal under s 267 for breaching s 60 of the ACL. An Appeal Panel allowed the appeal on the grounds that NCAT did not have jurisdiction, dismissing the proceedings.
Facts: The agreement between the parties was that the appellant would provide professional advice in respect of raising capital, the structure of the JAB business; and assist in obtaining sponsorship and government grants. The written agreement between the parties referred to “JAB Holdings”. However, at the time of the agreement, the only corporate entity was JAB Holdings New Zealand Limited. No Australian company has been registered.
Held (allowing the appeal and dismissing the claim for want of jurisdiction):
(i) The Appeal Panel held the Tribunal had no jurisdiction to consider the consumer claim under Part 6A of the Fair Trading Act 1987 (NSW) (FTA) as a New Zealand company is not a proprietary company under s 79D of the FTA and so cannot be a “small proprietary company” under s 79D(c) of the FTA. Accordingly, there was no “consumer” within the meaning of s 79D of the FTA. The evidence sufficiently proved JAB was not a “consumer”, satisfying the provision of s 79H of the FTA. The Appeal Panel noted that the issue of jurisdiction was not raised by the appellant in the appeal but arose as a result of the Appeal Panel’s deliberations. Nevertheless, the Appeal Panel proceeded to consider the merits of the claim in accordance with Kuru v State of New South Wales [2008] HCA 26 at [12].
(ii) Additionally, even if the Tribunal had jurisdiction, the Appeal Panel held the amount paid by JAB to the appellant was not a reasonably foreseeable loss or damage under s 267(4) of the ACL. A party does not automatically obtain a “refund” of monies paid when services are provided under s 267(4); it has to establish reasonably foreseeable loss or damage as a result of the breach of the consumer guarantee under s 60. |
3. Does NCAT have jurisdiction to consider the circumstances around the cancellation of a rent subsidy when determining a residential tenancy termination? |
NSW Land and Housing Corporation v Pinchin [2025] NSWCATAP 128
Appeal from the Consumer and Commercial Division D A C Robertson, Principal Member; Dr K M George, Senior Member
In sum: An Appeal Panel allowed an appeal from a social housing landlord in respect of a decision of NCAT that refused to terminate a residential tenancy agreement following the tenant’s non-payment of full market rent. The tenant’s rent subsidy was cancelled under s 57 of the Housing Act 2001 (NSW) (Housing Act) for failing to declare his daughter as an additional occupant. At first instance NCAT held that the landlord had not proven how the debt was calculated. However, the Appeal Panel held that the Tribunal does not have power to look behind the calculation of a debt under the Housing Act, finding that the wide discretion under s 154E of the Residential Tenancies Act 2010 (NSW) (RT Act) does not extend to a review of a landlord’s investigation or determination under ss 57 or 58 of the Housing Act.
Facts: The landlord had cancelled a rent subsidy under s 57 of the Housing Act on the basis the tenant had failed to declare an additional occupant, the tenant’s daughter. The tenant did not appeal that decision to the Housing Appeals Committee. The cancellation of the rent subsidy meant market rent was payable, and which caused the rent arrears to exceed $82,500 (although arrears had also accrued after the cancellation of the rent subsidy). At first instance, the Tribunal held the landlord had not “proved” how the rent arrears had been calculated, the period over which it was calculated, or provided details of the review. The Tribunal noted that for at least 12 months during the time in which the debt purportedly accrued, the additional occupant could not have been residing at the premises. The circumstances of the rent subsidy cancellation and the fact that the tenant “has been doing his best to pay the increased rent”, were relevant considerations to the Tribunal’s application of its “wide discretion” under s 154E of the RT Act and decision to refuse to terminate the residential tenancy.
Held (allowing the appeal and remitting the matter to the Consumer and Commercial Division):
(i) The Appeal Panel considered the statement of the Tribunal at first instance that the landlord should have brought his application under s 147 of the RT Act, rather than s 87. It was found that NCAT did not err on a question of law with regard to that statement, however the Appeal Panel considered that the Tribunal focused its enquiry “based on an erroneous understanding of ss 87 and 147” and that the findings were “clearly impacted” by that erroneous understanding. On that basis, the Appeal Panel concluded that the decision was not fair and equitable such that there was a significant possibility that the landlord may have been deprived of a more favourable result. Leave to appeal was granted on this ground and the appeal was allowed.
(ii) The Appeal Panel held that NCAT does not have power to look behind the calculation of a debt under the Housing Act and that circumstances regarding cancelation of a rent subsidy were not matters to be taken into account under s 154E of the RT Act, noting that NCAT did not have jurisdiction to scrutinise the decision to cancel the rent rebate. While NCAT’s discretion in determining whether to make a termination order is “undoubtedly wide”, the Appeal Panel found that it cannot extend to a critique of the landlord’s investigation or determination under ss 57 or 58 of the Housing Act. The discretion is confined to matters that may be considered under the RT Act. The Appeal Panel found that the exercise of discretion in this case was a jurisdictional error and allowed the appeal. |
4. What are the legal principles concerning the ‘slip rule’ in s 63 of the NCAT Act? |
FZK v Secretary, Department of Communities and Justice (No 2) [2025] NSWCATAP 144
Appeal from the Administrative and Equal Opportunity Division Seiden SC DCJ, Deputy President; H J Dixon SC, Senior Member
In sum: The appellant made a recusal application, which was refused with written reasons. The appellant then applied under s 63 of the NCAT Act for a correction of a part of the written reasons, arguing that paragraph 13 incorrectly summarised the appellant’s submission, which was summarised by NCAT as alleging “extreme prejudice”, and which the appellant argued was not exactly what was submitted. The test for a slip is “if the matter had been drawn to the court’s attention would the correction at once have been made?”. The Appeal Panel noted that it is not necessary to reiterate the exact words of the appellant and observed that the tenor of the oral submissions was consistent with the impugned summary in paragraph 13. The Appeal Panel found that the summary does not, of itself, demonstrate a slip and refused the application.
Held (refusing the application under s 63 of the NCAT Act to correct an aspect of the reasons):
(i) In refusing the application, the Appeal Panel outlined the legal principles applicable to s 63 of the NCAT Act. The s 63 power avoids injustices by permitting the Tribunal to correct its orders and reasons where there is an obvious error. If an amendment requires an independent discretion or where a real difference of opinion might exist, the error does not constitute an accidental slip. The test of whether a mistake or omission is accidental, as applied in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 (citing Hatton v Harris [1892] AC 547 at 558), is: “if the matter had been drawn to the court’s attention would the correction at once have been made?”
(ii) The appellant argued that the reference to “extreme prejudice” was a mistake because it was not part of the party’s submission to the Appeal Panel. The Appeal Panel noted that it is not necessary for the reasons for decision to replicate the appellant’s exact wording used in submissions. Therefore, the reference to “extreme prejudice” does not amount to an accidental slip or error under the relevant legal standard. |
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Udy v Barton [2025] NSWCATAP 117 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior Member; J Ledda, Senior Member Catchwords: LEASES AND TENANCIES — termination of fixed term residential tenancy agreement — termination order under former s 84 of the Residential Tenancies Act 2010 (NSW) — suspension of order for possession — effect of eviction under warrant executed before appeal hearing |
Liu v Gris [2025] NSWCATAP 122 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) - rent abatement - transcript or sound recording not provided - leave to appeal refused |
Young v Di Cesare T/As CPC Quality Smash Repairs [2025] NSWCATAP 124 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; H Dixon SC, Senior Member Catchwords: Appeals – failure to consider and determine issues raised for adjudication – denial of procedural fairness – implied terms in oral agreement – misleading and deceptive conduct by silence |
Gurton v Morris [2025] NSWCATAP 125 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; M Deane, Senior Member Catchwords: APPEAL – Dividing fences- no error of law or basis to grant leave to appeal- necessity for orders to expressly identify the party responsible for causing the fencing work to be carried out. |
Frangos v Theodore [2025] NSWCATAP 126 Appeal from the Consumer and Commercial Division Decision of: G Ellis SC, Senior Member; N Kennedy, Senior Member Catchwords: APPEAL – Denial of procedural fairness alleged – not established APPEAL – no realistic possibility of different outcome if the application was remitted for rehearing |
Nuset Group Pty Ltd v Whitehead [2025] NSWCATAP 127 Appeal from the Consumer and Commercial Division Decision of: Jan Redfern PSM, Senior Member Catchwords: APPEAL – Australian Consumer Law – defective engine – alleged sale by auction – whether findings of Tribunal in error – leave to rely on evidence refused by Tribunal at first instance– procedural fairness – order for costs challenged – whether questions of law raised – leave to appeal requested |
NSW Land and Housing Corporation v Pinchin [2025] NSWCATAP 128 Appeal from the Consumer and Commercial Division Decision of: D A C Robertson, Principal Member; Dr K M George, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – ss 87, 154A, 154E - Housing Act 2001 (NSW) – s 57 – Whether the Tribunal has jurisdiction to consider the circumstances in which a rental subsidy was terminated |
Culleton v Tonks [2025] NSWCATAP 129 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member; J Ledda, Senior Member Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence – No constructive failure to exercise jurisdiction APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claim by owners against builder – Whether the owners breached their duty to mitigate their loss CONSUMER LAW – Misleading or deceptive conduct – Contract for residential building works – Representation by director and by silence that the works would be carried out by appropriately licensed, qualified and experienced tradesmen – Whether the representation was actionable - Whether the representation was untrue – Whether the director is personally liable for the loss suffered by the owners |
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DeMarco v Macey [2025] NSWCATAP 131 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; M Tyson, Senior Member Catchwords: BUILDING AND CONSTRUCTION - CONTRACTS – Home Building Act 1989 (NSW) – general contractual principles - repudiation – measure and assessment of damages - calculation of damages – quantum meruit WORDS AND PHRASES - prime costs – provisional sums |
Pineiro v Sultana [2025] NSWCATAP 132 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) - setting aside consent orders - duress - unconscionable conduct - interpretation of Tribunal orders - extension of time |
Dwyer Building Group Pty Ltd v Spicer; Spicer v Dwyer Building Group Pty Ltd [2025] NSWCATAP 133 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; L Andelman, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim on renewal cannot include pre-existing defects not claimed in original proceedings. BUILDING AND CONSTRUCTION – Home Building –BC4 contract - extensions of time – form - requirement that variation be complete in order to claim extension of time BUILDING AND CONSTRUCTION – Home Building –quantum meruit claim – proof required. |
Commissioner for Fair Trading v Sarkees [2025] NSWCATAP 134 Appeal from the Occupational Division Decision of: Armstrong J, President; K Robinson, Principal Member Catchwords: APPEALS – questions of law – procedural fairness – legal reasonableness – adequacy of reasons where statutory requirement to give written reasons – appeal dismissed ADMINISTRATIVE LAW – administrative review – fit and proper person |
Morri v Addbuild Master Builders Pty Ltd [2025] NSWCATAP 136 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; L Andelman, Senior Member Catchwords: APPEALS – Civil and Administrative Tribunal – Question of Law ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – Procedural fairness – Whether appellant denied procedural fairness when support person directed to leave the hearing room – Whether the removal of the support person was material to the decision BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) – Jurisdiction – Tribunal not deprived of jurisdiction because dispute not referred to Fair Trading NSW before proceedings commenced – Whether proceedings an abuse of process – Whether appellant entitled to compensation for alleged pain and suffering |
Prestige Homez Pty Ltd v Ghag (No 2) [2025] NSWCATAP 137 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; J Redfern, Senior Member Catchwords: COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – appeal from proceedings below involving costs – costs redetermined by Appeal Panel – whether amount “claimed or in dispute” greater than $30,000 – rr 38 and 38A inapplicable- no special circumstances established |
Hood v Carla Zampatti Pty Ltd [2025] NSWCATAP 138 Appeal from the Consumer and Commercial Division Decision of: G K Burton SC, Senior Member; J Gatland, Senior Member Catchwords: LEASES AND TENANCIES — Retail leases — miscalculation of monies payable by evicted lessee |
Lawrence v Ciantar (No 2) [2025] NSWCATAP 139 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; L Andelman, Senior Member Catchwords: APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – grounds of amended appeal – misconstruction of s 48K of the Home Building Act – denial of procedural fairness APPEALS – points raised for first time on appeal – principles as to when Appeal Panel should allow points to be raised for first time on appeal – points not allowed to be raised
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Catallyze Pty Ltd v JAB Holdings New Zealand Limited [2025] NSWCATAP 140 Appeal from the Consumer and Commercial Division Decision of: E Bishop SC, Senior Member; P H Molony, Senior Member Catchwords: CONSUMER LAW — Consumer guarantees — Supply of services — measure of damages under s 267(4) CONSUMER LAW — consumer claim made under the Fair Trading Act 1987 (NSW) — jurisdiction of NCAT — New Zealand company not a small proprietary company under s 79D — effect of s 79H placing onus on person asserting no jurisdiction. PRACTIVE AND PROCEDURE — r 29 of the Civil and Administrative Tribunal Rules 2014 — an entity substituted as a party to a completed consumer claim, after an appeal is commenced, is not thereby made a party to the appeal by operation of r 29(1)(b) —procedure to be followed on appeal in such circumstances. |
Hamed v Hawach [2025] NSWCATAP 141 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior Member; J Redfern PSM, Senior Member Catchwords: REAL PROPERTY - LANDLORD and TENANT – RESIDENTIAL TENANCY – rental bond claim by landlord – alleged denial of procedural fairness – Residential Tenancies Act 2010 (NSW) ss 165, 175 - Civil and Administrative Tribunal Act 2013 (NSW) ss 36(3), 38 |
Avirame v The Owners-Strata Plan No 863852 [2025] NSWCATAP 142 Appeal from the Consumer and Commercial Division Decision of: D Charles, Senior Member; N Kennedy, Senior Member Catchwords: COSTS — Party/Party — Self represented litigant at first instance – Costs’ Discretion Miscarried – not reasonable and plainly unjust – no special circumstances warranting costs’ order |
Boensch v City of Parramatta Council [2025] NSWCATAP 143 Appeal from the Administrative and Equal Opportunity Division Decision of: K Ransome, Principal Member; E Bishop SC, Senior Member Catchwords: APPEAL – failure to consider submission – error on a question of law – constructive failure to exercise jurisdiction – material to outcome – rehearing by Appeal Panel – no jurisdiction to hear substantive application – appeal dismissed |
Adhami v The Owners – Strata Plan no 85271 [2025] NSWCATAP 145 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; P H Molony, Senior Member Catchwords: Appeal – claim for work orders and compensation under the Strata Schemes Management Act 2015 (NSW) – whether the two-year time limit under s 106(6) applies to all or only part of the application – error of law |
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Hafezi v Luff Pier Pty Limited [2025] NSWCATAP 148 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; M Deane, Senior Member Catchwords: APPEAL – Civil and Administrative Tribunal – Questions of law – Failure to address a substantial argument – Denial of procedural fairness BUILDING AND CONSTRUCTION – Renewal of proceedings where work order not complied with – Assessment of compensation where work order not complied with |
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Huo v The Owners – Strata Plan 44652 [2025] NSWCATAP 151 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; J McAteer, Senior Member Catchwords: COSTS – party/party – special circumstances – whether party has refused or failed to comply with the duty imposed by s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – proceedings dismissed – no basis for indemnity costs |
Georgiades v Indaus Ventures Pty Ltd [2025] NSWCATAP 152 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; M Deane, Senior Member Catchwords: APPEALS – leave to appeal- whether decision not fair and equitable – whether decision of Tribunal against the weight of the evidence – whether significant new evidence is now available which was not available at the time of the hearing |
Watson v Powers [2025] NSWCATAP 153 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; Dr K George, Senior Member Catchwords: COSTS – residential tenancy proceedings - no special circumstances |
Hakemi v Gray [2025] NSWCATAP 154 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; L Andelman, Senior Member Catchwords: LAND LAW – Strata title – Appointment by Tribunal of strata managing agent pursuant to s 237 Strata Schemes Management Act – Relevant considerations APPEAL – Civil and Administrative Tribunal – Questions of law – Procedural fairness – Obligations of Tribunal to unrepresented litigant – Receipt of oral evidence not the subject of written evidence filed in accordance with directions APPEAL – Civil and Administrative Tribunal – Questions of law – Adequacy of reasons |
King v Granny Flat Solutions Pty Limited [2025] NSWCATAP 155 Appeal from the Consumer and Commercial Division Decision of: S De Jersey, Principal Member; H Woods, Senior Member Catchwords: APPEAL - Home Building Act 1989 (NSW) – refunds of provisional sums - compensation - loss of rent - decision not fair and equitable - decision against the weight of evidence - significant new evidence available |
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Kratochvil v Cutting Choice Carpentry Pty Ltd [2025] NSWCATAP 157 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; N Kennedy, Senior Member Catchwords: APPEAL – Home Building Act – whether questions of law raised – adequacy of reasons – whether the owner validly terminated the contract and breached the contract by failing to pay a progress payment – competing evidence about defective work – the weighing of evidence |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
