NCAT Appeal Panel Decisions Digest Issue 7 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 July 2026: |
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210: An Appeal Panel dismissed an appeal, and allowed a cross-appeal, from NCAT’s Administrative and Equal Opportunity Division (AEOD). A key issue was the nature of the power exercised by the Appeal Panel. The Panel observed that, following Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191, it is uncontroversial that proceedings under the Government Information (Public Access) Act 2009 (NSW) involve the exercise of administrative power. The Panel found that the Appeal Panel exercises the same power in an internal appeal as the Tribunal at first instance; irrespective of whether the internal appeal is by way of a rehearing or a new hearing. A second key issue was whether the Appeal Panel has the power to make confidentiality orders under the Civil and Administrative Tribunal Act 2013 (NSW) over material which was not the subject of an express confidentiality order at first instance. The cross-appeal was allowed, as the Panel found that “excluded information” under the Government Information (Public Access) Act 2009 (NSW) has a wide meaning, which includes CCTV footage of an NCAT hearing room. The Panel set aside the relevant order of the Tribunal, which had ordered that the Appellant be given a specified form of access to the CCTV footage.
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Paxton v City West Housing Pty Ltd [2026] NSWCATAP 224: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division (CCD) which terminated the tenancy agreement of a social housing tenant (the appellant) due to unpaid rent. The appeal was allowed because NCAT at first instance made two errors on questions of law. First, NCAT failed to take into account relevant mandatory considerations as required by sections 87C and 154E of the Residential Tenancies Act 2010 (NSW) (the RT Act), and secondly, that there was a constructive failure to exercise jurisdiction because NCAT did not recognise that it had a discretion as to whether or not it should terminate the tenancy.
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Oliveira v Langting Property Pty Ltd [2026] NSWCATAP 226: A social housing tenant appealed a decision made in the Consumer and Commercial Division (CCD), claiming first that NCAT at first instance failed to take into account mandatory considerations under s 87C of the Residential Tenancies Act 2010 (NSW) (RT Act) by not considering his personal circumstances and, secondly, that NCAT did not have jurisdiction under the RT Act to order him to pay for the replacement of a garage door because the garage door was not included under the tenancy agreement. An Appeal Panel dismissed the appeal on both grounds.
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Cavanagh v Montgomery Homes Pty Ltd [2026] NSWCATAP 227: An Appeal Panel dismissed an appeal from the Consumer and Commercial Division (CCD). With respect to an issue concerning expert evidence, the Panel rejected the appellant’s submission that NCAT at first instance gave inadequate reasons for rejecting the evidence of the appellant’s expert (Mr Zakos). Further, the Panel held that NCAT was correct to accord diminished weight to Mr Zakos’ supplementary report by reason of his failure to comply with Procedural Direction 3 (concerning expert evidence) and the requirements/principles laid out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita).
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. What is the nature of the power exercised by the Appeal Panel on an internal appeal? In relation to the cross-appeal, how widely is the expression “relates to” as contained in the definition of “excluded information” under the Government Information (Public Access) Act 2009 (NSW) to be construed? |
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210
Appeal from the Administrative and Equal Opportunity Division Seiden SC DCJ, Deputy President; E Bishop SC, Senior Member
In sum: An Appeal Panel dismissed an appeal, and allowed a cross-appeal, from the Tribunal’s Administrative and Equal Opportunity Division (AEOD). Insofar as the appeal was concerned: the Panel refused leave to extend time to rely on additional grounds raised orally during the hearing by the Appellant, refused leave to appeal on grounds for which leave was required, and otherwise dismissed the appeal. The Panel allowed the cross-appeal, and set aside the relevant order of NCAT at first instance.
Facts: The first instance proceedings concerned administrative review of three access requests made under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The decision at first instance generally affirmed the decision of the Secretary (the Respondent/Cross-Appellant). NCAT set aside the Secretary’s decision in respect of some items, ordered access to some items, and remitted some items to the Secretary for reconsideration.
Held (refusing the appeal and allowing the cross-appeal):
(i) A key issue was the nature of the power exercised by the Appeal Panel. The Panel observed that, following Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191, it is uncontroversial that proceedings under the GIPA Act involve the exercise of administrative power. The Panel found that the Appeal Panel exercises the same power in an internal appeal as NCAT at first instance; irrespective of whether the internal appeal is by way of a rehearing or a new hearing. The Panel rejected the appellant’s submission that the Panel was required to conduct an internal appeal by way of a hearing de novo in order to stay within the purview of administrative power.
(ii) The cross-appeal concerned the question whether NCAT erred at law in finding that CCTV footage of an NCAT hearing room did not satisfy the statutory definition of “excluded information” under the GIPA Act.
(iii) The question on the cross-appeal was whether the CCTV footage relates to, in the requisite sense, NCAT’s judicial function of hearing and determining proceedings before it. The Panel was required to construe the expression “relates to” contained in the definition of “excluded information” in cl 1 of Sch 4 to the GIPA Act. The Panel found that for information to “relate to” NCAT, it must satisfy a two-pronged test: (1) the information must relate to a function, and (2) the function must relate to the Tribunal’s functions of hearing and determining proceedings. The Panel accepted the approach adopted in Murdoch v Commissioner of Police, NSW Police Force [2025] NSWCATAD 196 that the words “relate to” are of wide meaning, but not unbounded.
(iv) The Panel found that the connection between the information and NCAT’s function need not be such that the information assists NCAT to perform its function, however the relationship must be substantial, in the sense of real or of substance, as distinct from ephemeral or nominal. The Panel found that the CCTV footage related to the Sheriff’s function of safety and security of NCAT, and that that function indirectly related to NCAT’s function of hearing and determining proceedings, because it is part of how NCAT performs its role safely and it is visually and temporally connected to the hearing.
(v) Another issue on appeal was whether the Panel could make confidentiality orders on an internal appeal over material which, at first instance, was not the subject of an express confidentiality order made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), but access to which was refused under the GIPA Act. The Panel made orders on the appeal and cross-appeal under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to restrict the disclosure of the confidential material, filed at first instance and on appeal, to the Secretary. The confidential material contained information over which it was contended there was an overriding public interest against disclosure. Access had not been granted by the Tribunal. No confidentiality orders under the NCAT Act were made at first instance. The Panel found that the making of the confidentiality orders on the appeal (1) preserved the integrity of the orders made at first instance not to disclose the information to the Appellant, which were upheld on appeal, and (2) was consistent with s 107 of the GIPA Act. |
2. Was there a significant possibility or chance which was fairly open, that a different result, and a result more favourable to the appellant would have been achieved, if the NCAT Member at first instance had received a copy of the relevant statutory declaration? |
Hamilton v Rural Machinery Repair Service [2026] NSWCATAP 217
Appeal from the Consumer and Commercial Division M Tyson, Senior Member; K Merrick, Senior Member
In sum: An Appeal Panel allowed an appeal against an NCAT decision in the Consumer and Commercial Division (CCD) which dismissed the appellant’s application to reinstate proceedings. The Panel granted leave to appeal upon concluding that the appellant may have suffered a substantial miscarriage of justice if NCAT’s decision under appeal was not fair and equitable. This was because NCAT failed to consider evidence provided by a party.
Facts: The proceedings involved a claim by the appellant (for $16,375.46) that the respondent had not correctly repaired the hydraulic system in the appellant’s tractor. On 30 January 2026, the appellant made an application to reinstate proceedings under s 55(2) of the NCAT Act. The application was listed for final hearing at 1:15pm on 27 January 2026. In her application the appellant claimed that she could not enter the building and after calling NCAT registry was informed that her application was dismissed. The appellant noted in her application that she had a statutory declaration signed by her friend confirming that she could not access the building.
NCAT at first instance was “not satisfied” that the appellant provided a “reasonable explanation” for her failure to appear. The Member explained that the appellant’s assertions were not supported by “sworn evidence or by any documentary or objective records that were before the Tribunal” and that no statutory declaration document was available to the Member when he made his decision. Therefore, the threshold requirement under s 55(2) was not met and the application was to be dismissed.
Held (allowing the appeal):
(i) William Aiken was joined as a party to the proceedings.
(ii) The notice of appeal was one raising the question of whether leave to appeal should be granted.
(iii) While a reinstatement application is properly characterised as an interlocutory decision, the practical effect in this case was that the dismissal of the application remained in place. This meant that the appellant had lost her chance to have the merits of her substantive claim determined.
(iv) It was noted that the lack of support by a “sworn evidence” and the absence of any “corroborating documentary material” were “central” to NCAT’s decision and that NCAT’s written reasons made it apparent that the statutory declaration was not brought to the Member’s attention despite being “central and material” to the issues in dispute (s 55(2) NCAT Act). The Panel was therefore satisfied that the appellant may have suffered a substantial miscarriage of justice as the decision under appeal was not fair and equitable.
(v) To grant leave to appeal, the Panel did not need to be affirmatively satisfied that a substantial miscarriage of justice had occurred but instead considered whether there was a significant possibility or chance which was fairly open, that a different result, and a result more favourable to the appellant would have been achieved. Had the statutory declaration come to the attention of the Member, such a possibility or chance was significant.
(vi) Leave to appeal was granted, the appeal was allowed with orders set aside and the matter remitted to a differently constituted Tribunal. |
3. Did NCAT fail to take into account relevant mandatory considerations under the Residential Tenancies Act 2010 (NSW)? Did NCAT constructively fail to exercise its jurisdiction by not recognising that it had a discretion as to whether or not it should terminate the appellant’s tenancy? |
Paxton v City West Housing Pty Ltd [2026] NSWCATAP 224
Appeal from the Consumer and Commercial Division P Durack SC, Senior Member; M Tyson, Senior Member
In sum: An Appeal Panel allowed an appeal from NCAT’s Consumer and Commercial Division (CCD) which terminated the tenancy agreement of a social housing tenant (the appellant) due to unpaid rent. The appeal was allowed because NCAT at first instance made two errors on questions of law. First, NCAT failed to take into account relevant mandatory considerations as required by sections 87C and 154E of the Residential Tenancies Act 2010 (NSW) (the RT Act), and secondly that there was a constructive failure to exercise jurisdiction because NCAT did not recognise that it had a discretion as to whether or not it should terminate the tenancy.
Facts: The appeal concerned a termination of a ‘social housing residential tenancy agreement’ under s 136 of the RT Act. The tenant appealed orders made by NCAT which terminated her residential tenancy agreement with the respondent (the landlord, a community housing provider). In October 2025, the landlord issued the tenant with a notice to terminate the tenancy for non-payment of rent and charges. Previous NCAT orders established a repayment plan to ensure the tenant repaid rent arrears but there was substantial non-compliance from August 2025. When the landlord commenced proceedings in November 2025, the rent arrears claimed totalled to $6275.94.
The tenant did not appear at the first hearing of the application on 1 December 2025 and an order for termination was made in her absence. Subsequently, this order was set aside pursuant to Regulation 9 of the Civil and Administrative Tribunal Regulation 2022. There was a final hearing for the matter on 28 January 2026, where the tenant appeared by telephone. NCAT pointed to several circumstances affecting the appellant’s ability to comply with the repayment plan as well as the vulnerabilities relevant to making a termination order. However, an order for termination was still made.
Held (allowing the appeal):
(i) The tenant was granted the necessary extension of time in which to lodge the appeal.
(ii) The question under s 87C(3)(b) is whether NCAT is “satisfied that the breach is, in the circumstances of the case, sufficient to justify termination is a mandatory consideration requiring consideration of the circumstances of the case before the Tribunal, based on the evidence provided by each of the parties, including any relevant aspects of the tenant’s circumstances such as those that inform an understanding of the breach and the effect of termination on the tenant: Kelly v NSW Land & Housing Corporation [2018] NSWCATAP 154 at [46]-[53]; King v NSW Land and Housing Corporation [2022] NSWCATAP 165 at [29]-[37]; Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 at [15].”
(iii) Section 154E of the RT Act also states factors which NCAT “must” have regard to when exercising its discretion to make a termination order. For example, the effect of the tenancy on neighbours, the likelihood of neighbours suffering serious adverse effects if the tenancy is not terminated, the history of any prior social housing tenancy agreement, or whether the tenant has breached an NCAT order.
(iv) It was uncontroversial that the tenant was in breach for failing to pay rent.
(v) Each of ss 87C(3) and 89(5) confer a discretionary power upon NCAT to make a termination order. A number of statements in the hearing made it apparent that NCAT understood that given the breaches in failing to pay rent, NCAT was obliged to terminate the tenancy. It was also apparent that NCAT misunderstood the nature of the tenancy and did not understand that it was dealing with the termination of a social housing residential tenancy agreement. The landlord’s submissions do not address the language used in the transcript nor the absence of any reference by NCAT to the terms of the relevant statutory provisions, including the discretionary nature of the power.
(vi) NCAT made no finding that an order for termination should be made on the basis that the tenant had frequently failed to pay rent.
(vii) Clearly, NCAT misapplied the law. These deficiencies were “at the heart of the two grounds of appeal advanced by the appellant”, namely the failure to take into account relevant mandatory considerations as required by ss 87C and 154E, and that there was a constructive failure to exercise jurisdiction because NCAT did not recognise it had a discretion as to whether or not it should terminate the tenancy. The Panel was satisfied that NCAT made two errors on a question of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] – [40].
(viii) The appeal was allowed and the orders for termination and possession were set aside, with the proceedings remitted to a differently constituted Tribunal for redetermination. |
4. Did NCAT fail to take into account mandatory considerations under s 87C of the Residential Tenancies Act 2010 (NSW) by not (in an ex parte hearing) taking into account the possibility that the tenant may have, but did not, provide evidence of personal circumstances? |
Oliveira v Langting Property Pty Ltd [2026] NSWCATAP 226
Appeal from the Consumer and Commercial Division G Sarginson, Deputy President
In sum: A social housing tenant appealed a decision made in the Consumer and Commercial Division (CCD), claiming first that NCAT at first instance failed to take into account mandatory considerations under s 87C of the Residential Tenancies Act 2010 (NSW) (RT Act) by not considering his personal circumstances and, secondly, that NCAT did not have jurisdiction under the RT Act to order him to pay for the replacement of a garage door because the garage door was not included under the tenancy agreement. An Appeal Panel dismissed the appeal on both grounds.
Facts: The tenant appealed two NCAT decisions. The first terminated the tenancy by reason of non-payment of rent, with a finding that the tenant had frequently failed to pay rent under s 89(5) of the RT Act. The second decision involved damage caused by the tenant’s vehicle to the garage door of the strata building when entering the building car park. NCAT ordered the tenant to pay the landlord $8,334.50 for the cost of replacing the garage door and associated costs.
There were two key issues on appeal: first, regarding the termination orders, NCAT’s failure to take into account mandatory considerations (the tenant’s personal circumstances) under s 87C of the RT Act; and secondly, regarding the compensation orders, that NCAT did not have jurisdiction under the RT Act as the garage door was not part of the residential premises under the residential tenancy agreement.
Held (refusing the appeal):
(i) The rent ledger of the landlord contained evidence of non-compliance with NCAT’s orders sufficient to invoke the landlord’s right to re-list the termination application pursuant to the re-list orders that had been made under s 188 of the RT Act. There was no information or material before the Panel to demonstrate that NCAT did not have the power to make the orders sought. The reasons, although “economical”, did not indicate that NCAT failed to consider “all the circumstances of the case” where the landlord clearly argued that the breach of the agreement and the failure to comply with previous NCAT orders were sufficient to justify termination of the tenancy.
(ii) In both Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 and King v NSW Land and Housing Corporation [2022] NSWCATAP 165, the Appeal Panel found that “whether breach is, in the circumstances of the case, sufficient to justify termination of the agreement” is a mandatory consideration. Whether the breach is sufficient in all the circumstances to justify termination of the tenancy is dependent upon what evidence is before NCAT at the hearing.
(iii) The landlord’s termination application was listed on 7 April 2026, and in circumstances where there the tenant did not appear, it was open to NCAT to determine the application by hearing the matter on that occasion. If the tenant had appeared at the NCAT hearing, he could have “provided evidence of his personal circumstances and made submissions that the breach by non-payment of rent was not sufficient, in all the circumstances, to justify termination of the tenancy”. However, he did not appear nor did he give such evidence. NCAT therefore could not consider any of the tenant’s circumstances that he did not put forward.
(iv) If NCAT was always required to take into account the possibility that the tenant may, but has not, provided evidence of personal circumstances, NCAT could rarely terminate a tenancy at an ex parte hearing, because there may be potentially relevant circumstances of the tenant that were not in evidence at the time of the hearing. Neither Kelly or King sets out the mandatory consideration of whether the breach is, in all the circumstances, sufficient to terminate the tenancy in such broad terms.
(v) The reasons of the NCAT Member at first instance, while “not extensive”, met the “minimum characteristics” of sufficient reasons such that no error on a question of law or grounds for leave to appeal arise from any inadequacy of reasons (Lin v Westerman [2025] NSWCATAP 319 at [56]-[57].
(vi) As to the tenant’s grounds of appeal that the garage door was not part of the residential premises under the residential tenancy agreement between the parties, the agreement clearly stated that it included access to a car parking space in the strata building, and that a term of the written agreement was that the tenant could not damage the garage gate. Accordingly, the garage door was provided with the premises (Sharma v Hoque [2026] NSWCATAP 198 at [46]-[47]). As such, there was no error established in NCAT’s finding that the tenant had breached the agreement by causing damage to the garage door.
(vii) The Appeal was dismissed as the tenant failed to establish any error on a question of law or grounds to grant leave to appeal. |
5. Did NCAT err by dismissing or according no weight to evidence of an expert by reason of the expert’s failure to comply with NCAT’s Procedural Guidelines or the principles expressed in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705? |
Cavanagh v Montgomery Homes Pty Ltd [2026] NSWCATAP 227
Appeal from the Consumer and Commercial Division D A C Robertson, Principal Member; N Kennedy, Senior Member
In sum: An Appeal Panel dismissed an appeal from the Consumer and Commercial Division (CCD). With respect to an issue concerning expert evidence, the Panel rejected the appellant’s submission that NCAT at first instance gave inadequate reasons for rejecting the evidence of the appellant’s expert (Mr Zakos). Further, the Panel held that NCAT was correct to accord diminished weight to Mr Zakos’ supplementary report by reason of his failure to comply with Procedural Direction 3 (concerning expert evidence) and the requirements/principles laid out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita).
Facts: In the initial NCAT proceedings the home owners (now the appellants) claimed incomplete and defective works and delays by a builder (now the respondent). The appellants originally sought damages of more than $200,000 ($170,294.12 based on an initial report from Mr Zakos, an expert retained by the owners, plus a revised claim of $44,391 based on a “supplementary report” prepared by Mr Zakos) for defective work and claimed $10,360 in liquidated damages for delay. The appellants sought a money order rather than a work order because they claimed that the relationship between them and the builder had broken down.
A key issue considered on appeal was the effect of failure by an expert witness to comply with NCAT’s procedural guidelines and how Makita should be applied. Among other things, the owners contended that NCAT failed to provide adequate reasons for its rejection of Mr Zakos’ supplementary evidence in relation to roof replacement.
Held (refusing the appeal):
(i) The principles of admissibility in Makita and their application to NCAT were explained in My Fashion Republic Pty Ltd t/as Cosette v Ho [2024] NSWCATAP 191. The principles include the following: an expert witness may give opinion evidence, however, the first matter NCAT must consider when deciding what weight to give that evidence is whether the expert has qualifications and/or experience in the relevant field; an expert’s opinion must clearly indicate the facts upon which it is based; the fact must be proved; the reasoning must be disclosed; the opinion and the reasons for it must fall within the expert’s qualifications or experience; the considerations of a Tribunal when giving weight to expert evidence are the same as those of a Court.
(ii) Mr Zakos’ supplementary evidence was a document appended to the joint report prepared by the experts. Mr Zakos stated that the cost of “making good” had increased to $44,391.25 while the builder’s expert said the increase was not discussed in the conclave and that he disagreed with the change. Instead, the builder’s expert accepted what he stated was “the original agreed cost of $1,578”.
(iii) NCAT concluded that – partly due to Mr Zakos’ failure to provide a “supplementary report” explaining his change of opinion – the owners failed to demonstrate that the roof required replacement. In “contrast to what is required” Mr Zakos merely made a statement appended to the original report.
(iv) NCAT’s reasoning concerning the owners’ claim for the cost of the replacement of the roof was more than adequate.
(v) The Makita requirements for expert evidence are not mere technical rules of evidence. They are, as Heydon JA explained in Makita, at [85], necessary to ensure that an expert’s opinion can be seen to be more than “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.
(vi) NCAT was correct to accord diminished weight to Mr Zakos’ supplementary report by reason of his failure to comply with Procedural Direction 3 and the Makita requirements. |
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Chung v The Owners – Strata Plan No 4856 [2026] NSWCATAP 207 Appeal from the Consumer and Commercial Division Decision of: D Charles, Senior Member; N Kennedy, Senior Member Catchwords: LAND LAW – Strata Schemes Management Acts 1996 & 2015 – whether removal of clear glass balustrading & installation of opaque glass panels was authorised – interpretation of legislation - meaning of “specifically authorises” in s 65A of the 1996 Act and s 108(2) of the 2015 Act – concepts of common sense and reasonableness preferred - consideration of the meaning of “to organise” in the context of Owners Corporation resolution – exercise of discretion to grant relief under s 232 and s 241 of the 2015 Act |
Pambris v Chief Commissioner of State Revenue [2026] NSWCATAP 208 Appeal from the Administrative and Equal Opportunity Division Decision of: K Ransome, Principal Member; J Sullivan, Senior Member Catchwords: APPEAL – land tax – intended principal place of residence exemption under cl 6 of Sch 1A of the Land Tax Management Act 1956 (NSW) – no demonstrated error on a question of law or in relation to the facts found by the Tribunal – onus of proof not satisfied
APPEALS — whether error of law or other error — leave to appeal refused |
LCY Co Pty Ltd v Maison Property Group Pty Ltd [2026] NSWCATAP 209 Appeal from the Consumer and Commercial Division Decision of: D Ziegler, Senior Member; M Deane, Senior Member Catchwords: APPEALS — leave to appeal — whether decision against the weight of evidence — whether decision not fair and equitable — new evidence
APPEALS — Procedural fairness
CONSUMER LAW — Consumer guarantees — supply of services — guarantee as to due care and skill |
Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2026] NSWCATAP 210 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; E Bishop SC, Senior Member Catchwords: APPEAL — Question of law –– Leave to appeal –– Leave to extend time to rely on additional grounds of appeal –– Leave to rely on material served late
FREEDOM OF INFORMATION — Government Information (Public Access) Act 2009 — Administrative power — Meaning of “judicial functions” — Meaning of “relate to” — Excluded information — Restriction of disclosure under s 64 of the Civil and Administrative Tribunal Act 2013 where overriding public interest against disclosure |
YRP v YSM [2026] NSWCATAP 212 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; E M Connor, Senior Member (Legal); Dr B McPhee, Senior Member (Professional) Catchwords: GUARDIANSHIP — financial management — appointment of a person as manager of a protected estate — whether in evaluating whether the manager was a “suitable person” the Tribunal failed to consider the manager’s criminal history and apply the principles in M v M [2013] NSWSC 1495 at [50]
GUARDIANSHIP — appointment of a guardian — whether the Tribunal misapplied s 17(1)(b) of the Guardianship Act 1987 (NSW) — whether proposed guardian’s criminal history gave rise to an undue conflict between their interests and those of the person the subject of the guardianship order
DOCTRINE OF PRECEDENT — application to NCAT — whether principles stated in M v M [2013] NSWSC 1495 at [50] constituted seriously considered dicta — whether Tribunal was required to consider each of the principles stated in M v M |
Hall v The Owners – Strata Plan No. 31934 [2026] NSWCATAP 213 Appeal from the Consumer and Commercial Division Decision of: J Redfern PSM, Senior Member; S Hennings, Senior Member Catchwords: APPEAL – Costs ordered in strata management case based on special circumstances – no error on question of law – leave to appeal refused |
Kelly v NSW Land and Housing Corporation [2026] NSWCATAP 214 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing – consent orders terminating tenancy – whether consent vitiated |
Hutchin v McPherson [2026] NSWCATAP 215 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member Catchwords: APPEALS — Procedure — Whether two appeals should be heard together — Relevant matters — Where first appeal listed for hearing very shortly and second appeal, brought by respondent to first appeal, filed six months out of time and only shortly before hearing fixed for first appeal — Where First Respondent to second appeal was removed as a party to the first appeal by consent of other parties — Where orders made in first appeal could not affect the First Respondent to the second appeal — Where listing appeals together would require adjournment of the first appeal — Not necessary or appropriate for appeals to be listed together |
Anderson v Microsoft Pty Ltd [2026] NSWCATAP 216 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; R Titterton OAM, Senior member Catchwords: CONSUMER LAW – unconscionable conduct – breach of contract – identity of correct respondent.
APPEAL – failure to afford procedural fairness. |
Hamilton v Rural Machinery Repair Service [2026] NSWCATAP 217 Appeal from the Consumer and Commercial Division Decision of: M Tyson, Senior Member; K Merrick, Senior Member Catchwords: APPEAL – application to reinstate proceedings – evidence of party not considered – substantial miscarriage of justice
PRACTICE AND PROCEDURE – reinstatement application – whether order refusing reinstatement is final or interlocutory |
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Tiebosch v Kirkland [2026] NSWCATAP 220 Appeal from the Consumer and Commercial Division Decision of: K Ransome, Principal Member; N Kennedy, Senior Member Catchwords: APPEALS — Materiality of error
LEASES AND TENANCIES – Residential tenancies – question of principle – meaning of s 51(3) of the Residential Tenancies Act 2010 (NSW) |
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Halim v Wang [2026] NSWCATAP 222 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; P H Molony, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW)- whether s 43 of the Residential Tenancies Act 2010 applies to a failure to maintain after commencement of a tenancy – assessment of compensation for breach of duty under s 63 of the Residential Tenancies Act 2010 |
The Owners-Strata Plan No 68307 v Horan (No 4) [2026] NSWCATAP 223 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President Catchwords: COSTS – application for miscellaneous matters – ancillary proceedings – costs – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – amount in dispute in appeal proceedings – costs in favour of successful party in the ancillary proceedings |
Paxton v City West Housing Pty Ltd [2026] NSWCATAP 224 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; M Tyson, Senior Member Catchwords: LEASES AND TENANCIES – termination of social housing tenancy agreement for breach by the tenant in failing to pay rent.
APPEALS –Tribunal misunderstood that it was obliged to order termination - question of law raised. |
Chan v InChurch Automotive Pty Limited trading as Parramatta Hyundai [2026] NSWCATAP 228 Appeal from the Consumer and Commercial Division Decision of: K Robinson, Principal Member; P Durack, Senior Member Catchwords: APPEALS – question of law – leave – application of consumer law – vehicle transmission failure repaired and vehicle subsequently used – consideration of consumer guarantee and major fault provisions - no demonstrated error - appeal dismissed |
Burmeister v AMDE Construction Pty Ltd t/as GJ Gardner Homes Sydney North [2026] NSWCATAP 229 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; H Woods, Senior Member Catchwords: HOME BUILDING CONTRACT- Appeal against assessment of damages payable by builder for delay in completion of home building works - whether Tribunal erred in its interpretation of second limb of principle in Hadley v Baxendale - whether Tribunal erred in its application of the principle |
The Owners - Strata Plan No 48238 v Zhu [2026] NSWCATAP 230 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondents – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed |
McNally v Resolution Life Australasia Limited [2026] NSWCATAP 231 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; P Durack SC, Senior Member Catchwords: DECLARATORY RELIEF- Where appellant sought only declaratory relief from tribunal at first instance - whether appellant demonstrates error on question of law - whether appellant establishes entitlement to grant of leave to appeal on other grounds - whether appellant should pay successful respondent’s costs |
YQY v YRR [2026] NSWCATAP 232 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; E M Connor, Senior Member (Legal); Dr B McPhee, Senior Member (Professional) Catchwords: PROCEDURAL FAIRNESS — bias — actual bias — types of actual bias — whether bias by one member of a multi-member tribunal will deprive the tribunal of jurisdiction
EVIDENCE — no evidence — whether Tribunal made findings of fact without evidence
PROCEDURAL FAIRNESS — obligation of tribunal to consider a party’s evidence — factors relevant to whether tribunal required to have regard to a particular piece of evidence — whether inference can be drawn tribunal failed to have regard to particular evidence
EVIDENCE — whether factual finding made in absence of evidence
REASONS FOR DECISION — whether reasons for decision were adequate
LEAVE TO APPEAL — principles |
Athens v The Owners-Strata Plan No 47035 (No 2) [2026] NSWCATAP 233 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; J Redfern PSM, Senior Member Catchwords: COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – whether rr 38 and 38A apply – s 60 Civil and Administrative Tribunal Act 2013 (NSW) |
Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force (No 2) [2026] NSWCATAP 234 Appeal from the Occupational Division Decision of: Seiden SC DCJ, Deputy President; G Blake AM SC, Principal Member Catchwords: PRACTICE AND PROCEDURE — NSW Civil and Administrative Tribunal — Internal appeal — Rehearing — Whether further hearing by the Appeal Panel appropriate — Whether remittal to the Tribunal as originally constituted or to a differently constituted Tribunal appropriate — Considerations |
Tremaine v Gems Painting Pty Ltd; Gems Painting Pty Ltd V Tremaine [2026] NSWCATAP 235 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; P H Molony, Senior Member Catchwords: BUILDING AND CONSTRUCTION -Home Building Acct 1989 (NSW) – breach of statutory warranties – unlicensed builder - remedies – whether damages the appropriate remedy – assessment of damages – measure of damages - adjustment for unpaid contractual monies
COSTS – application of s 60(1)-(3) of the Civil and Administrative Tribunal Act 2013 (NSW) – exercise of discretion – whether failure to consider relevant matters |
Markareh v Intelpools Pty Ltd trading as Autumn Pools [2026] NSWCATAP 236 Appeal from the Consumer and Commercial Division Decision of: M Tyson, Senior Member; A Boxall, Senior Member Catchwords: APPEAL — duties of an expert when giving opinion evidence – scope of renewal application – application of renewal proceedings to circumstances where there is no relevant order in favour of the person who seeks to renew proceedings |
Manning v The Owners - Strata Plan No 61973 [2026] NSWCATAP 237 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: COSTS – costs application by the respondent – principles – refusal of application for an extension of time to lodge notice of appeal out of time – costs order made in favour of the respondent |
Inventbuild Pty Ltd v Tulemis [2026] NSWCATAP 238 Appeal from the Consumer and Commercial Division Decision of: Dr K George, Senior Member; R C Titterton OAM, Senior Member Catchwords: “BUILDING AND CONSTRUCTION - Appeal allowed in so far as Tribunal ported to deal with common property defects in an application brought by a lot owner otherwise no question or principal in relation to errors on questions of law or other errors" |
McNally v Resolution Life Australasia Ltd [2026] NSWCATAP 239 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; K Merrick, Senior Member Catchwords: DECLARATORY RELIEF- Where appellant sought only declaratory relief from tribunal at first instance - whether appellant demonstrates error on question of law - whether appellant establishes entitlement to grant of leave to appeal on other grounds - whether appellant should pay successful respondent’s costs |
AMOS 1386 Pty Ltd v Sherikey Pty Ltd [2026] NSWCATAP 240 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; D Goldstein, Senior Member Catchwords: COSTS – Proceedings settled without hearing or determination – Lai Qin principles – No error in Tribunal making no order in relation to costs |
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El-Saeidy v NSW Land and Housing Corporation [2026] NSWCATAP 242 Appeal from the Consumer and Commercial Division Decision of: Member Names, Member Titles G Sarginson, Deputy President Catchwords: APPEALS – civil procedure – appeal from interlocutory decision – refusal to issue Summons to produce documents – no grounds for leave to appeal established |
Heath v Houma Holdings Pty Ltd t/as Brian Hilton Motor Group [2026] NSWCATAP 243 Appeal from the Consumer and Commercial Division Decision of: I R Coleman SC ADCJ, Principal Member; N Kennedy, Senior Member Catchwords: APPEALS – Whether Tribunal erred in principle by considering whether breach of guarantee of acceptable quality pursuant to Australian Consumer Law was major defect – whether, if Tribunal did not err in principle by determining whether breach of guarantee of acceptable quality was major defect, Tribunal erred by failing to find that it was |
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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. |
