NCAT Appeal Panel Decisions Digest Issue 7 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 July 2025: |
Martin v Hancock [2025] NSWCATAP 173: An Appeal Panel allowed an appeal from the Consumer and Commercial Division of NCAT that awarded tenants $5,000 in non-economic loss, despite only claiming $2,000. The landlord did not have an opportunity to respond to that increased amount. NCAT had denied the tenants’ request for an extension to file evidence yet accepted their (three months late) evidence at the hearing. Both parties were unrepresented, and the landlord believed the tenants’ evidence would not be relied upon. The landlord’s misunderstanding was exacerbated when NCAT did not refer to specific documents at the hearing or explain that the landlord may object to NCAT relying on the evidence. The matter was remitted to a differently constituted Tribunal for redetermination.
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Powell v Christensen [2025] NSWCATAP 181: In a residential tenancy dispute, the tenant appealed a decision of the Consumer and Commercial Division of NCAT on procedural fairness grounds in relation to the Tribunal’s decision to refuse her adjournment application, despite detailed medical evidence explaining the delay. An Appeal Panel granted leave to appeal that on that ground, finding that the failure to adjourn the proceedings was material to the outcome of tenant’s compensation claim.
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Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160: An Appeal Panel dismissed an appeal from a decision refusing leave under s 96(1) of the Anti-Discrimination Act 1977 (NSW) (AD Act) for want of jurisdiction. Despite the decision being a ‘general decision’, which would otherwise be amenable to an internal appeal, cl 15(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a decision of the Tribunal made pursuant to s 96 of the ADA is not an internally appealable decision with respect to the granting of leave for the purposes of that section. The Appeal Panel had no jurisdiction to review the decision.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. What are NCAT’s obligations when both parties are self-represented? |
Martin v Hancock [2025] NSWCATAP 173
Appeal from the Consumer and Commercial Division D Ziegler, Senior Member; Dr K George, Senior Member
In sum: An Appeal Panel allowed an appeal in part from the Consumer and Commercial Division of NCAT in relation to a residential tenancy dispute where the tenants sought damages relating to the landlord’s decision to permanently disconnect their electricity. The application included a claim for non-economic loss of $2,000 but instead NCAT awarded $5,000, which the landlord claimed was a breach of procedural fairness because she was not on notice that the tenants were claiming that amount. The Tribunal had also relied on late evidence filed by the tenants, which the landlord alleged was procedurally unfair because she believed it would not be considered following an order refusing an extension to file the evidence.
Facts: In early 2024 a couple (the tenants) entered into an oral agreement to lease a granny flat on the landlord’s property. By May 2024, a dispute arose over electricity costs, leading the landlord to permanently disconnect the tenants’ power on 22 July 2024. The tenants commenced proceedings to reconnect electricity the next day. On 6 August 2024, the tenants attended a conciliation where they withdrew one of their proposed orders for specific performance as, due to the disconnection of power, they had vacated the premises with their 3-month-old baby. The tenants requested an extension of time for the filing and serving of their evidence, which NCAT had refused on the ground that there was no corroborating medical evidence in support of the request.
Held (Allowing the appeal in part and remitting the compensation claim for reconsideration):
(i) The landlord contended that the Residential Tenancies Act 2010 (NSW) (RT Act) did not apply to the arrangement because it was an “informal” or “private” arrangement where the parties had not agreed to be bound by the Act. At first instance, NCAT found that the RT Act did apply because a “private” agreement did not demonstrate any exceptions to the applicability of the RT Act. This was challenged on appeal. The Appeal Panel agreed with the conclusion of NCAT and dismissed this ground of appeal.
(ii) While it was noted that “the Tribunal’s procedures are intended to be flexible” under s 38 of the NCAT Act, it was the Appeal Panel’s view that “the unrepresented landlord was denied a fair opportunity to present her case and that there exists a realistic possibility that the outcome could have been different had those errors not been made”. The Appeal Panel found that the Tribunal had impliedly extended the time for the tenants to file evidence without explicitly explaining to the parties that it was doing so. This would have been confusing for both parties, who were self-represented, in circumstances where there was an order refusing to extend the time for filing. The Appeal Panel also found that NCAT had failed to clearly reference documents at the start of the hearing when confirming that the parties had filed and served documents on each other, which contributed to the confusion of the self-represented parties.
(iii) The Appeal Panel ordered the refund of the partial bond sought by the tenants in the circumstances and the remainder of the matter was remitted to a differently constituted Tribunal for redetermination. |
2. In what circumstances will it be procedurally unfair for NCAT to deny an adjournment application? |
Powell v Christensen [2025] NSWCATAP 181
Appeal from the Consumer and Commercial Division Dr K M George, Senior Member; H Woods, Senior Member
In sum: An Appeal Panel allowed an appeal in part, finding that NCAT breached procedural fairness by refusing a tenant’s adjournment application despite detailed medical evidence explaining her inability to attend. The tenant, who was in rent arrears approximately $1,165 at the end of the tenancy, had sought compensation for repairs the landlord failed to undertake. Although there was an earlier adjournment, the tenant’s requests were denied, and her application was dismissed when she failed to appear. The Appeal Panel held that NCAT erred in not properly considering the medical evidence, remitting the compensation part of the claim for reconsideration. The Appeal Panel dismissed the remainder of the appeal, affirming that rent is an essential and independent obligation under a residential tenancy agreement.
Facts: The parties had a residential tenancy agreement between the period of 16 December 2022 to 5 March 2024. The rent was $680 a week and at the end of the tenancy, the tenant was in arrears approximately $1,165. During the tenancy period, the tenant claimed that she was out of pocket for repairs and maintenance that the landlord had not carried out themselves or reimbursed her for. Leading up to the first hearing date of 9 August 2024, the tenant was granted extensions and an adjournment of the hearing. It was noted that there was evidence of the seriousness of her medical circumstances, however “it [was] not the case that the proceedings can be indefinitely adjourned nor that time to comply with previous extensions of time can be indefinitely extended.” Ahead of the new hearing date of 23 September 2024, the tenant made an adjournment request, which was refused. The next day she made a further application for adjournment of the hearing with additional medical information. The second adjournment application was also refused. The tenant’s application was dismissed for failure to appear. The landlord had also made an application for the outstanding rent, which was heard, and orders were made for the bond to cover the amount owed by the tenant.
Held (Allowed in part regarding the compensation claim and otherwise dismissing the appeal):
(i) The tenant claimed that the landlord could not enforce the payment of rent under the residential tenancy agreement where the landlord had not upheld the agreement, namely the failure to keep up with the maintenance of the premises. The Appeal Panel noted that the tenant disclosed a “fundamental misunderstanding” about the obligations of parties to a residential tenancy agreement: “it is a contract under which the payment of rent to the landlord is an essential term, independent of any obligations owed to the tenant.” Leave to appeal on this ground was refused and that part of the appeal was dismissed.
(ii) The Appeal Panel decided to grant leave regarding the adjournment refusal because the decision was against the weight of evidence and was not fair and equitable. The medical certificate was prepared for an insurance claim, however it was detailed regarding the tenant’s diagnoses and was supportive of her inability to participate in the hearing, including post-operative instructions to remain home until after the hearing (2 October 2024). The decision to refuse the adjournment was based on the mistaken belief that no evidence of incapacity had been filed. The Appeal Panel concluded that this error may have caused a substantial miscarriage of justice. The compensation part of the claim was remitted for reconsideration. |
3. When is a ‘general decision’ under s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) not an internally appealable decision? |
Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160
Appeal from the Administrative and Equal Opportunity Division Seiden SC DCJ, Deputy President; Dr R Dubler SC, Senior Member
In sum: An Appeal Panel has dismissed an appeal for want of jurisdiction from a decision in the Administrative and Equal Opportunity Division that refused leave under s 96(1) of the Anti-Discrimination Act 1977 (NSW) (AD Act). While an order concerning a complaint referred from Anti-Discrimination NSW (ADNSW) is a ‘general decision’ under s 29 of the NCAT Act that would otherwise be amenable to an internal appeal, cl 15(a) of Sch 3 to the NCAT Act provides that a decision made with respect to the granting of leave under s 96 of the AD Act, is not an internally appealable decision in NCAT. As a result, the Appeal Panel has no jurisdiction to hear and determine the appeal.
Facts: On 18 June 2024 Mr Boyland filed a complaint with ADNSW (the Complaint), which was declined on 11 December 2024. Mr Boyland requested that the President of ADNSW refer the Complaint to NCAT under s 93A of the AD Act. NCAT then heard the matter on 5 March 2025. The Tribunal declined Mr Boyland’s application for leave for his complaint to proceed under s 96(1) of the AD Act.
Held (Dismissing the appeal):
(i) The Decision of the Tribunal was a decision under s 96(1) of the AD Act to refuse to grant Mr Boyland leave to proceed with his Complaint in NCAT, following referral by the President of ADNSW. In such cases, ss 93A, 95 and 96 of the AD Act require that proceedings may not commence without the Tribunal’s leave. Under s 29 of the NCAT Act, this refusal constitutes a 'general decision' and is an ancillary decision.
(ii) Despite the Decision being a general decision, which would otherwise be amenable to internal appeal, cl 15(a) of Sch 3 to the NCAT Act provides that a decision of the Tribunal made pursuant to s 96 of the AD Act is not an internally appealable decision with respect to the granting of leave for the purposes of that section. By the terms of cl 15(a) of Sch 3 to the NCAT Act, its provisions prevail over the general provision of the internal appeal jurisdiction of the Tribunal in s 32 of the NCAT Act. Section 17(3) of NCAT Act has a similar effect. By operation of cl 15(a) of Sch 3 to the NCAT Act, the Tribunal’s Decision was not an ‘internally appealable decision’, and the Appeal Panel has no jurisdiction to review it. |
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Boyland v Commonwealth Bank of Australia [2025] NSWCATAP 160 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: APPEAL – Jurisdiction of Appeal Panel – Appeal from decision refusing leave under s 96(1) of the Anti-Discrimination Act 1977 (NSW) – Whether internally appealable decision. |
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Dubroja v Kabir [2025] NSWCATAP 162 Appeal from the Consumer and Commercial Division Decision of: Dr K M George, Senior Member; J Ledda, Senior Member Catchwords: APPEALS — application for extension of time to lodge an appeal — whether decision of NSW Civil and Administrative Tribunal under Residential Tenancies Act 2010 (NSW) precluded by res judicata or issue estoppel |
Ungaro v Matijevic [2025] NSWCATAP 163 Appeal from the Consumer and Commercial Division Decision of: H J Dixon SC, Senior Member; J Ledda, Senior Member Catchwords: LAND LAW — strata title — powers of owners corporation — approvals under by-laws for parking on common property — whether parking prohibitions and restrictions based on blanket vehicle classifications instead of size are permissible APPEALS — appeal as of right for failure to respond to substantial, clearly articulated arguments — leave to appeal because decision not fair and equitable or against weight of evidence — whether special circumstances warrant award of costs in the appeal |
Candy Events Pty Ltd v Thrain Pty Ltd t/as Digital Solutions Group [2025] NSWCATAP 164 Appeal from the Consumer and Commercial Division Decision of: M Deane, Senior Member; N Kennedy, 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 – extension of time refused APPEALS — right of appeal — scope of right — question of law – No error on a question of law established — leave to appeal — principles governing – no prospect of success |
Mortley v Sankla [2025] NSWCATAP 165 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; S Hennings, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent increase application – s 44(1)(a) Residential Tenancies Act 2010 (NSW) – provision of written residential tenancy agreement – conduct of agent of landlord – no error on a question of law established – no grounds for leave to appeal established |
Al-Aaraj v Commissioner of Police, NSW Police Force (No 2) [2025] NSWCATAP 166 Appeal from the Administrative and Equal Opportunity Division Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: COSTS – whether special circumstances established – no question of principle APPEALS —appeals in respect of matters of practice and procedure — no question of principle |
Mitakidis v Everyday Homes Pty Ltd [2025] NSWCATAP 167 Appeal from the Consumer and Commercial Division Decision of: G Burton SC, Senior Member; N Kennedy, Senior Member Catchwords: REAL PROPERTY – HOME BUILDING – measure of damages for breach of contract – overheads and general operating expenses – whether required to be included – gross profit or net profit - obligation to identify components in issue – issue sought to be raised on appeal but not at primary hearing – Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 38 |
Woods v Dorrington [2025] NSWCATAP 168 Appeal from the Consumer and Commercial Division Decision of: G K Burton SC, Senior Member; P H Molony, Senior Member Catchwords: CONSUMER LAW – failure to provide transcript or written reasons – uncertainty whether jurisdictional facts the subject of findings – error of law requiring remitter |
The Owners – Strata Plan no 74482 v YNW [2025] NSWCATAP 169 Appeal from the Consumer and Commercial Division Decision of: S Westgarth, Deputy President; R Alkadamani, Senior Member Catchwords: APPEAL- application to adjourn hearing refused-appeal against interlocutory decision-whether leave to appeal should be granted-whether appellant was denied procedural fairness or whether appellant had a reasonable opportunity to apply to amend the timetable for service of its evidence and/or apply to adjourn the hearing. |
Bussey v Pattoy Pty Ltd [2025] NSWCATAP 170 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; N Kennedy, Senior Member Catchwords: APPEALS- agreement on appeal that small additional amount should be paid to the appellant-appeal dismissed in respect of orders sought on appeal for more significant amounts. |
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Ekermawi v Aldi Foods Pty Ltd [2025] NSWCATAP 172 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; D Goldstein, Senior Member Catchwords: APPEAL – Application for leave - No question of principle – Advertising of consumer items |
Martin v Hancock [2025] NSWCATAP 173 Appeal from the Consumer and Commercial Division Decision of: D Ziegler, Senior Member; Dr K George, Senior Member Catchwords: APPEAL — questions of law — procedural fairness. LEASES AND TENANCIES — whether agreement is a residential tenancy agreement covered by the Residential Tenancies Act 2010 (NSW). |
GTK v NSW Treasury [2025] NSWCATAP 174 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; EA MacIntyre, Senior Member Catchwords: APPEAL – leave to appeal – interlocutory decision – discretionary decision – House v The King principles – adequate reasons – breach of procedural fairness – constructive failure to exercise jurisdiction INTERIM APPLICATION – extension of time – delay – medical evidence – prejudice – substantial merit |
O’Neill v Commissioner of Police, NSW Police Force [2025] NSWCATAP 175 Appeal from the Administrative and Equal Opportunity Division Decision of: S Higgins, Senior Member; R Perrignon, Senior Member Catchwords: APPEALS – administrative review of an administratively reviewable decision – whether the Tribunal misdirected itself as to its authority to review the internal review decision of the respondent to revoke the appellant’s firearms licence – the proper construction and application of section 53(5) and (5A) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) – whether on internal review under section 53 of the ADR Act it was open to the internal reviewer to substitute a decision to impose a condition on the appellant’s licence (section 19(1) of the Firearms Act 1996) with a decision to revoke the appellant’s firearms licence (section 24 of the Firearms Act 1996), or was it a new decision for which the appellant had a right to seek internal but not duly applied for such a review (Administrative Decisions Review Act 1997 section 55(3)). APPEALS – a question of law – self-represented appellant – Tribunal identified the wrong issue and asked the wrong question – conflation of the fit and proper person test and the public interest test (Firearms Act 1997 (NSW) sections 11(3)(a), 11(7), 24(2)(c) and (d) and Firearms Regulation 2017 (NSW) clause 20). |
Douglas v Lin [2025] NSWCATAP 176 Appeal from the Consumer and Commercial Division Decision of: A Bell SC, Senior Member; M Deane, Senior Member Catchwords: APPEALS – order for adjournment to group list and notation of an agreement between the parties to pay instalments of rent – whether an internally appealable decision – whether leave to appeal should be granted. APPEALS – order noting written agreement of parties for payment of rental arrears exceeding jurisdictional limit of $15,000 – non-enforceable notation – not a decision capable of internal appeal. APPEALS – appeal of termination order – effect of eviction under warrant for possession executed before appeal hearing – grounds of appeal for remaining orders. |
J & E Miller (Builder) Pty Ltd v Awad [2025] NSWCATAP 177 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – whether the reasons of the Tribunal at first instance were inadequate – whether the Tribunal erred in its application of s 18E of the Home Building Act 1989 (NSW) – whether the Tribunal erred in its construction and application of the Building Code of Australia and Australian Standard 3740 – whether the Tribunal denied the appellant procedural fairness – whether the Tribunal “failed in its application” of s 48MA of the Home Building Act 1989 (NSW). |
Domson Construction Pty Ltd v Yanying Li [2025] NSWCATAP 178 Appeal from the Consumer and Commercial Division Decision of: P H Molony, Senior Member; J Redfern PSM, Senior Member Catchwords: APPEAL – Home Building dispute – practical completion – construction of cl 20 of the Master Builders Association NSW Costs Plus (Residential) contract -– placement of furniture in building site – whether deemed occupation – rectification of roof defects – evidence overlooked – leave to amend grounds of appeal |
Raffoul v Wong [2025] NSWCATAP 179 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS — bias — application for recusal — principles – application dismissed |
Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; P H Molony, Senior Member Catchwords: APPEAL – Administrative Review – Firearms – Revocation of licence – Expired conditional release order (CRO) – Utility – Appeal ground moot – No appeal ‘on’ a question of law – Leave to appeal refused APPEAL – Administrative Review – Firearms – Revocation of licence – Public interest ground – Cannabis use – Medical prescription – Whether virtually no risk to public safety – Whether Tribunal reached unreasonable conclusion |
Powell v Christensen [2025] NSWCATAP 181 Appeal from the Consumer and Commercial Division Decision of: Dr K M George, Senior Member; H Woods, Senior Member Catchwords: APPEAL – LEASES AND TENANCIES – refusal of adjournment – whether substantial miscarriage of justice – whether utility in allowing appeal |
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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. |
