NCAT Appeal Panel Decisions Digest Issue 8 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 August 2026: |
Justice and Equity Centre v Commissioner of Police, NSW Police Force [2026] NSWCATAP 258: An Appeal Panel allowed an appeal (in part) from a decision of NCAT’s Administrative and Equal Opportunity Division (AEOD). The appellant sought access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) but the respondent only provided redacted copies. NCAT affirmed the respondent’s decision. The Panel found, however, that NCAT misapplied s 14 of the GIPA Act by erroneously taking into account the fact that the redacted information may have been “misleading and confusing”.
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YWQ v YWR [2026] NSWCATAP 263: An appeal from NCAT’s Guardianship Division (GD) was allowed on the basis that the appellant was not accorded procedural fairness. An Appeal Panel accepted the appellant’s evidence that he only found out about the hearing five days prior to the date it was set down for. The Panel found that there was a realistic possibility that there could have been a different outcome had the appellant not been denied a reasonable opportunity to be heard. As such, the failure to give him adequate notice constituted a failure to accord procedural fairness.
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YQP v Sydney Local Health District [2026] NSWCATAP 262: An Appeal Panel allowed an appeal from NCAT’s Guardianship Division (GD) on the basis that it misapplied ss 15(3) and 17(1) of the Guardianship Act 1987 (NSW). It did so by failing to consider whether the appellants met the criteria for appointment as guardian under s 17(1) of the Guardianship Act, which it ought to have considered before appointing the Public Guardian.
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Chater v Le Clair [2026] NSWCATAP 265: An appeal from NCAT’s Consumer and Commercial Division (CCD) was allowed in part. At first instance, NCAT found the Owners Corporation and the appellant were jointly and severally liable for loss and damage of the respondents’ property, and concluded that a 50/50 apportionment was reasonable. An Appeal Panel found, however, that NCAT failed to sufficiently consider the appellant’s submissions on multiple points regarding the claim of nuisance against her, and as such, there were multiple errors on questions of law in the form of constructive failures to exercise jurisdiction.
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Each case title is hyperlinked to the full decision available on NSW Caselaw. |
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1. Did NCAT misconstrue the weighing exercise under s 14 of the Government Information (Public Access) Act 2009 (NSW) when it took into account the fact that the redacted information may have been “misleading and confusing” for the public? Was this a ground of review which brought to bear the application of House v King? |
Justice and Equity Centre v Commissioner of Police, NSW Police Force [2026] NSWCATAP 258 Appeal from the Administrative and Equal Opportunity Division J Gatland, Senior Member; EA MacIntyre, Senior Member
In sum: An Appeal Panel allowed an appeal (in part) from a decision of NCAT’s Administrative and Equal Opportunity Division (AEOD). The Justice and Equity Centre (the appellant) sought access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). NCAT at first instance affirmed the Commissioner of Police’s (the respondent’s) decision that the public interest considerations against disclosure carried greater weight and as such, denied the appellant access to the requested information. The Panel found, however, that NCAT misapplied s 14 of the GIPA Act by erroneously taking into account the fact that the redacted information may have been “misleading and confusing”.
Facts: The appellant had sought access to information under the GIPA Act about the exercise of police powers in respect of Firearms Prohibition Orders (FPOs). On 27 September 2024 the respondent gave the appellant access to redacted copies of some of the information sought (the first access application) and subsequently the appellant filed an administrative review application with NCAT. NCAT at first instance affirmed the respondent’s decision which refused to give the appellant access to the information in dispute. Then, on 18 December 2024, the appellant made a second access application regarding information that had been redacted from the first access application. The respondent refused to deal with this second application insofar as it dealt with information which was already assessed within the first application. The appellant again applied to NCAT for administrative review, this time in respect of the second application.
NCAT heard both administrative review applications together. NCAT affirmed the respondent’s decision in both instances and stated that there was “a conclusive presumption that there was an overriding public interest against disclosure of some of the information sought”. NCAT stated that s 14 of the GIPA Act contains a Table including the only considerations (apart from the conclusive presumption above) that may be taken into account under the GIPA Act as public interest considerations against disclosure. These considerations arise where it “could reasonably be expected” that the effects described in the table would arise. NCAT weighed these considerations against relevant public interest considerations in favour of disclosure, and found that the public interest considerations against disclosure carried greater weight.
The appellant raised three grounds of appeal, those being (1) NCAT erred by failing to properly apply the “could reasonably be expected” standard (2) NCAT erred in its consideration of legal professional privilege claims made by the respondent by failing to give adequate or clear reasons and (3) NCAT erred by treating the potential for information to mislead or confuse the public as a relevant public interest consideration against disclosure and by taking into account other irrelevant considerations. A question also arose as to whether a weighing exercise of the kind required under the GIPA Act can only be undone on error of law grounds in circumstances of the kind set out in House v The King (1936) 55 CLR 499 (House v King).
Held (allowing the appeal on Ground 3):
(i) Ground 3 raised questions of what considerations may, under the scheme of the GIPA Act, be taken into consideration as a public interest consideration against disclosure. NCAT stated in its reasons that the release of material could be misleading and confusing given it did not represent the respondent’s final position. The appellant submitted that in doing so, NCAT took into account an irrelevant consideration. Whether the release of any material could be misleading and confusing is not a consideration set out in the Table in s 14. Section 15(d) contains a specific prohibition on considering such a factor: “the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account”.
(ii) NCAT erred on ground 3 because only public interest considerations listed in s 14(1) and the Table can apply. Additionally, s 15(d) prevents taking into account the fact that disclosure of information might be misinterpreted or misunderstood by any person.
(iii) Where NCAT is determining whether a public interest consideration for or against disclosure arises, that determination does not involve a discretion of a kind that brings to bear the House v King principles. Rather, it is a determination to be made on the facts of the case – not a matter of discretion. NCAT makes this finding based on the evidence rather than by exercise of any discretion. However, once each public interest consideration has been established, the outcome of the weighing exercise does require judgment and is a matter on which reasonable minds can differ and thus “bring to bear the application of House v King principles”. As such, the fact that NCAT conducted the weighing exercise in a way that was expressly not permitted and also irrelevant under the GIPA Act meant that the House v King principles applied to allow consideration and determination of Ground 3.
(iv) NCAT erred to the extent that it allowed weight to considerations not allowed to be considered in the weighing exercise, namely matters concerning disclosure misleading the public.
(v) The appeal was allowed in part and to that extent, was remitted to NCAT for re-determination. |
2. Did NCAT provide the appellant adequate notice of hearing? |
YWQ v YWR [2026] NSWCATAP 263
Appeal from the Guardianship Division A Britton, Deputy President; J Toohey, Senior Member; M Bain, Senior Member
In sum: An appeal from NCAT’s Guardianship Division (GD) was allowed on the basis that the appellant was not accorded procedural fairness. An Appeal Panel accepted the appellant’s evidence that he only found out about the hearing five days prior to the date it was set down for. The Panel found that there was a realistic possibility that there could have been a different outcome had the appellant not been denied a reasonable opportunity to be heard. As such, the failure to give him adequate notice constituted a failure to accord procedural fairness.
Facts: NCAT at first instance made guardianship and financial management orders in respect of the appellant’s mother (the mother), appointing the Public Guardian as the mother’s guardian and committing management of her estate to the NSW Trustee and Guardian.
NCAT determined the mother to be a “person in need of a guardian” (Guardianship Act 1987 (NSW), ss 3(1), 14(1)) and under s 14(2)), exercised the discretion to make a guardianship order. In doing so, NCAT considered whether “it should leave [the appellant] as the enduring guardian” but stated it could not be satisfied the appellant would sufficiently carry out the necessary functions due to his emotional attachment and the “lack of insight” into her care needs. NCAT also found that the appellant “is unable to make decisions in [the Mother’s] best interests”.
In his appeal, the appellant complained that he was denied procedural fairness because before the hearing he was not given a copy of the applications made to NCAT by the applicant social worker seeking the guardianship and financial management orders, nor did he receive written notice of the hearing. He claimed that he first learnt of the hearing by a call from registry, five days before it was held.
The appellant claimed that he first heard of the hearing five days prior to it commencing and that the only information he was given was that the hearing was to “discuss concerns raised by the hospital about his mother and he should attend”. The appellant claimed that he did not receive any documents from NCAT (until after the hearing) and denied being given a copy of the application by the applicant social worker, or being told by her that she had made, or intended to make, the application.
Held (allowing the appeal):
(i) Given the Notice of Hearing was dated 28 April 2025 and posted from Sydney to the appellant (in northern NSW), his claim that he did not receive that notice and the accompanying documents until 5 May 2025 was “plausible”. The Panel found, as claimed, that the appellant received the notice on 4 May 2025.
(ii) While it could be inferred that the appellant and the applicant social worker had discussed the recommendation that the mother move into residential aged care, there was nothing in the reasons to contradict the appellant’s claim that the applicant social worker did not tell him about the application. As such, the claims could be proven on the balance of probabilities.
(iii) Neither the Guardianship Act nor the NCAT Act stipulate a minimum period of notice that parties to proceedings must be given of a hearing.
(iv) The appellant was not given adequate notice of the hearing because the appellant (1) was not given a copy of the applications made or told of an intention to make the applications (2) was not informed of the particulars of the concerns (3) was given scant information about the applications when informed of the hearing (4) found it difficult to gather material (5) had to make sense of technical and complex applications and (6) there did not seem to be a risk of delaying the determination of the applications.
(v) The failure to give the appellant adequate notice of the hearing, together with the failure to give him a copy of the application or to inform him of the substance of the applicant social worker’s concerns, denied the appellant a reasonable opportunity to obtain evidence to address those concerns.
(vi) There was a realistic possibility that there could have been a different outcome had the appellant not been denied a reasonable opportunity to be heard.
(vii) As such, the failures constituted a failure to accord procedural fairness. |
3. Did NCAT misapply ss 15(3) and 17(1) of the Guardianship Act 1987 (NSW) by not properly considering whether the appellants met the criteria for appointment and by not linking family conflict to the appellants’ capacity to act as the subject person’s guardian? |
YQP v Sydney Local Health District [2026] NSWCATAP 262
Appeal from the Guardianship Division A Britton, Deputy President; S L Handebo, Principal Member; Dr B McPhee, Senior Member (Professional)
In sum: An Appeal Panel allowed an appeal from NCAT’s Guardianship Division (GD) on the basis that it misapplied ss 15(3) and 17(1) of the Guardianship Act 1987 (NSW). It did so by failing to consider whether the appellants met the criteria for appointment as guardian under s 17(1) of the Guardianship Act, which it ought to have considered before appointing the Public Guardian.
Facts: Sarah (a pseudonym) was admitted to hospital after failing to take medication for her epilepsy. In May 2025, a hospital social worker, on behalf of the Sydney Local Health District, made applications to NCAT seeking guardianship and financial management orders in respect of Sarah. The social worker claimed Sarah had significant cognitive impairment and was unable to make informed decisions regarding her personal and financial affairs. The social worker wrote “the preference is for the Public Guardian/NSW Trustee and Guardian to be appointed because of complex family dynamics and conflict within the family”.
NCAT’s Guardianship Division (GD) subsequently made orders to appoint as her guardian, the NSW Public Guardian and to commit the management of her estate to the NSW Trustee and Guardian. Sarah’s two sons (the appellants) appealed on the basis that they were willing to act as Sarah’s guardian and as such, by appointing the Public Guardian, NCAT misapplied provisions of the Guardianship Act. Section 15(3) instructs NCAT not to appoint the Public Guardian “in circumstances in which such an order can be made appointing some other person as the guardian of the person”. The appellants also contended that they were denied procedural fairness because they misapprehended the role of the lawyer appointed as “separate representative” for Sarah. Further, the appellants seek leave to appeal from each decision and requested that the Panel exercise the discretion conferred by the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to deal with the appeal by way of a new hearing.
Held (allowing the appeal from the decision to appoint the Public Guardian):
(i) Central to NCAT’s decision to appoint the Public Guardian were the submissions made by the separate representative, that there was “no real option but to appoint the Public Guardian” and that each daughter “reported a history of significant violence within the family perpetrated by ‘the boys’”. Further, the representative claimed that the daughters’ “level of mistrust of [Charles] in particular is such that it would exacerbate conflict if he were to be appointed [and] the appointment of any family member would lead to conflict”. NCAT confirmed that it was unable “to determine the truth or otherwise” of the daughters’ claims but accepted the submission that “appointing any of them would exacerbate conflict within the family and would not be in [Sarah’s] best interests”.
(ii) NCAT went on to say, “given evidence of [Sarah’s] susceptibility to influence, we are satisfied in the circumstances of this case that there is no other person who can be appointed as guardian”.
(iii) By the combined operation of ss 15(3) and 17(1) of the Guardianship Act, if satisfied that an individual met the criteria for appointment listed in s 17(1), NCAT was precluded from appointing the Public Guardian: ZKF v ZKG [2019] NSWCATAP 64 at [29]. NCAT’s reasons did not consider whether either or both of the appellants met those criteria. NCAT did not state that there was a link between its findings of family conflict and Sarah was susceptible to influence, and whether the sons met the criteria for appointment under s 17(1). Nor did the reasons, read fairly and as a whole, support that inference being drawn.
(iv) Despite correctly stating the statutory tests and acknowledging that “conflict within a family is not necessarily a reason to appoint the Public Guardian”, the “inescapable conclusion” was that NCAT did “just that”. As such, NCAT misapplied ss 15(3) and 17(1).
(v) NCAT misapplied the provisions which govern the appointment of a guardian but the appellants failed to establish that they were denied procedural fairness, or that the circumstances warranted granting leave to appeal or dealing with the appeal by way of a new hearing.
(vi) The appeal was allowed and the decision to appoint the Public Guardian was set aside. |
4. Did NCAT err on a question of law – namely, did it constructively fail to exercise its jurisdiction – when considering the appellant’s submissions in the claim of common law nuisance against her? |
Chater v Le Clair [2026] NSWCATAP 265
Appeal from the Consumer and Commercial Division S de Jersey, Principal Member; J Redfern, Senior Member PSM
In sum: An appeal from NCAT’s Consumer and Commercial Division (CCD) was allowed in part. The appellant (Ms Chater) and the respondents were before NCAT due to water ingress issues from both common property and Ms Chater’s lot, which were affecting the respondents’ lot. At first instance, NCAT found the Owners Corporation (OC) and Ms Chater jointly and severally liable for the loss and damage, concluding that a 50/50 apportionment was reasonable. An Appeal Panel found, however, that NCAT failed to sufficiently consider Ms Chater’s submissions on multiple points regarding the claim of nuisance against her, and as such, there were multiple errors on questions of law in the form of constructive failures to exercise jurisdiction.
Facts: The NCAT proceedings concerned a strata dispute decided under the Strata Schemes Management Act 2015 (NSW) (SSMA) between Ms Chater as owner of Lot 30 and the first and second respondents (the Le Clairs) as owners of Lot 4 and the third respondent, being the OC. The issue concerned damage to the Le Clairs’ lot from water ingress from a common property external wall and the balcony of Ms Chater’s lot.
NCAT made four substantive orders against the OC and Ms Chater and made two orders in relation to costs. Orders 1 and 2 were work orders, with Order 3 directing that those works be completed within four months. Under Order 4, the OC and Ms Chater were ordered to be jointly and severally liable for the loss and damage particularised in the total sum of $204,785.80. While the OC submitted that Ms Chater was more than 50% responsible and Ms Chater submitted that the OC had primary responsibility, NCAT found that “neither expert provided a definitive calculation as to the percentage”. NCAT was satisfied on the evidence with a 50/50 apportionment as a reasonable apportionment between the two respondents.
Ms Chater appealed Order 4 of the NCAT decision on two bases: first, NCAT erred in finding that the second respondent committed a nuisance and a breach of s 153 of the SSMA (Ground 1); and secondly, NCAT erred in its apportionment of liability across the first and second respondents (Ground 2).
Held (allowing the appeal in part):
(i) Ms Chater stated that NCAT erred in finding her liable for nuisance and breach of s 153 of the SSMA and that it did not properly consider her arguments about foreseeability or the steps taken by her to address the water ingress. Notably, NCAT’s reasons did not engage in detail with the appellant’s submissions regarding the “reasonable and convenient” use of her lot nor did they engage at all with the question of foreseeability.
(ii) As to the former, NCAT found that the defective waterproofing and guttering on Ms Chater’s lot was causing the water ingress and could have been (but was not) remedied, thereby constituting an “unreasonable use” of the lot. There was, however, no analysis of this issue in the reasons. Once substantial interference by water ingress was established, the onus was on Ms Chater to demonstrate that what she had done to remedy the water ingress was reasonable to mitigate the effects. NCAT did not deal with these issues in any detail other than by finding that the remedial steps were not effective and that the water ingress continued.
(iii) As to the latter, NCAT did not address Ms Chater’s submissions about foreseeability. NCAT clearly recorded her submission that in order to succeed in a claim for nuisance, the Le Clairs needed to establish that the damage to their property from the nuisance was reasonably foreseeable. Despite this, there was no further reference or finding about the issue. There was no finding by NCAT about whether it was satisfied that all or part of the loss and damage claimed was foreseeable. Being aware of continued water ingress after the rectification works may have been sufficient to establish foreseeability of damage for nuisance but there were no findings or analysis about this.
(iv) In the absence of any findings by NCAT about either the steps taken by Ms Chater to minimise nuisance or whether the claimed losses were reasonably foreseeable, NCAT failed to consider a “clearly articulated and material argument” of Ms Chater. This constituted a constructive failure to exercise jurisdiction and therefore an error on a question of law.
(v) NCAT’s reasons also did not explain how it determined joint and several liability and how it applied s 35 of the Civil Liability Act 2002 (NSW). Ms Chater claimed that NCAT erred in its apportionment of liability and, in particular, failed to properly engage with the apportionment issues as between her and the OC. NCAT did not explain nor give reasons why a 50/50 apportionment was reasonable nor why the fact that the experts had not provided a “definitive calculation as to percentage” compelled that conclusion.
(vi) Without any findings by NCAT as to the basis for a 50/50 apportionment and why the order was joint and several, NCAT again failed to consider a “clearly articulated and material argument” of Ms Chater. This too constituted a constructive failure to exercise jurisdiction and therefore an error on a question of law.
(vii) The claims subject to Order 4 were remitted to NCAT for re-determination. |
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Tabaja v Commissioner of Police, NSW Police Force [2026] NSWCATAP 244 Appeal from the Occupational Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS – appeal against dismissal of application for reinstatement of the proceedings seeking administrative review of the mandatory revocation of a security licence where there was a guilty finding but with no conviction being recorded of a prescribed offence – appeal dismissed as having no practical utility |
Farkas v BaptistCare Community Housing Limited [2026] NSWCATAP 245 Appeal from the Consumer and Commercial Division Decision of: S De Jersey, Principal Member; J Sullivan, Senior Member Catchwords: APPEALS – Residential Tenancies Act 2010 (NSW) – tenant’s claim alleging breach of s 50(3) regarding actions of neighbour in a social housing complex –– no demonstrated error of law –– no basis for grant of leave to appeal –– incomplete evidence before the Appeal Panel –– leave refused to admit new evidence that post-dated the hearing below
COSTS – no basis for award of costs sought by appellant |
Offner v Kalkandis [2026] NSWCATAP 246 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member; K Robinson, Principal Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Television antenna not functioning — Not functioning at commencement of tenancy — Landlord not required to repair — Express clause in tenancy agreement placed responsibility for the provision of television and internet services upon the tenant — Proper construction of tenancy agreement — Clause excluded any obligation upon landlord to repair the antenna |
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Craft v Khaled trading as Wollongong Fencing and Gates [2026] NSWCATAP 248 Appeal from the Consumer and Commercial Division Decision of: Dr K George, Senior Member; K Merrick, Senior Member Catchwords: APPEAL - Home Building Act (NSW) 1989 - time limit for breach of statutory warranty – date of completion – extension of warranty period – whether decision against the weight of evidence and not fair and equitable – new evidence |
Zonnevylle v Department of Communities and Justice [2026] NSWCATAP 249 Appeal from the Administrative and Equal Opportunity Division Decision of: K Ransome, Principal Member; K Robinson, Principal Member Catchwords: APPEAL – administrative review – access to government information – refusal to deal – unreasonable and substantial diversion of resources – matters to be considered – relevance of access applicant’s conduct – referral of matter to Minister or Information Commissioner – principles |
FZS v Commissioner of Police, NSW Police Force [2026] NSWCATAP 250 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; E Bishop SC, Senior Member Catchwords: CATCHWORDS – Catchwords – Catchwords APPEALS — Government information — Excluded information — Prosecuting functions — Whether sound recordings prepared by police which formed part of prosecutorial brief against appellant 10 years ago constitute excluded information — Whether prosecuting functions must be extant — No temporal connection for “prosecuting functions” required under the Government Information (Public Access) Act 2009 (NSW) — Appeal dismissed |
McGinn v The Owners - Strata Plan No 89088 [2026] NSWCATAP 251 Appeal from the Consumer and Commercial Division Decision of: G Blake AM SC, Principal Member Catchwords: APPEALS — Procedure — Adjournment – Application for adjournment of the appeal by the Appellant is dismissed APPEALS – Whether decision under appeal is an interlocutory decision – Principles - Leave to appeal against an interlocutory decision is refused
CIVIL PROCEDURE - Variation of interlocutory orders – Principles – Orders varied to prevent prejudice to the Appellant
COSTS – Costs application by the Respondent – Leave to appeal refused and the appeal dismissed Principles – Special circumstances – Costs order made in favour of the Respondent |
Zhang v Deshpande [2026] NSWCATAP 252 Appeal from the Consumer and Commercial Division Decision of: D Robertson, Principal Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 39 — Utility charges — Water usage charges — Water efficiency measures — Residential Tenancies Regulation 2019 (NSW) cl 10(d) — Requirement to check efficiency measures when taps are replaced — Failure to comply precludes recovery by landlord
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 39(4) — Utility charges — Water usage charges — Landlord must request payment within 3 months of the issue of a bill by water supply authority — Failure to make request precludes recovery by landlord
APPEALS — Question of law — Whether the adequacy of reasons given orally raises a question of law |
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Najmitdinov v NSW Land and Housing Corporation [2026] NSWCATAP 255 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; H Woods, Senior Member Catchwords: LEASES – social housing residential tenancy-landlord’s application for order for access to residential tenancy premises.
APPEAL – appeal from order to summarily dismiss proceedings against the appellant because of the respondent’s failure to appear-leave to appeal required- whether the hearing of the appeal should be adjourned-whether the appeal has any utility-whether the appellant has suffered a substantial injustice as a result of the decision. |
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Olympia Homes Pty Ltd v Tian [2026] NSWCATAP 257 Appeal from the Consumer and Commercial Division Decision of: H Woods, Senior Member; P H Molony, Senior Member Catchwords: BUILDING AND CONSTRUCTION – no insurance taken out as required by s 92 of the Home Building Act 1989 (NSW) – whether a homeowner has a right to recover money paid under a contract where works uninsured – consideration of Field v Dettman [2013] NSWCA 147 – no such right of action - whether the defence of a claim for the return of a deposit received by an uninsured builder is the enforcement of a right of action by the builder to recover money contrary to s 94(1) of the HBA – defence not enforcement. |
Justice and Equity Centre v Commissioner of Police, NSW Police Force [2026] NSWCATAP 258 Appeal from the Administrative and Equal Opportunity Division Decision of: J Gatland, Senior Member; EA MacIntyre, Senior Member Catchwords: APPEAL – leave to appeal – question of law - discretionary decision - House v King principles - leave to appeal
GOVERNMENT INFORMATION - conclusive presumption against disclosure - legal professional privilege - public interest considerations for disclosure - public interest considerations against disclosure - balancing public interest considerations - “could reasonably be expected to” test |
Ding v Schneider [2026] NSWCATAP 259 Appeal from the Consumer and Commercial Division Decision of: G Sarginson, Deputy President; I R Coleman SC ADCJ, Principal Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – duty of landlord to repair – compensation to tenant for breach |
Connolly v Department of Communities and Justice [2026] NSWCATAP 260 Appeal from the Administrative and Equal Opportunity Division Decision of: Dr J Lucy, Principal Member; M Deane, Senior Member Catchwords: APPEALS – extension of time – whether to extend time to appeal – where appellant’s application for review of conduct under the privacy legislation was dismissed for want of jurisdiction – where Tribunal found appellant had not applied for internal review – whether respondent prejudiced by delay - whether appeal is on a question of law - whether arguable grounds of appeal identified |
Islam v By Elora Pty Ltd [2026] NSWCATAP 261 Appeal from the Consumer and Commercial Division Decision of: Dr K M George, Senior Member; K Merrick, Senior Member Catchwords: CONSUMER LAW — Guarantee relating to the supply of goods by description — guarantee relating to the supply of goods by sample — weight of evidence — significant new evidence — whether substantial miscarriage of justice |
YQP v SYDNEY LOCAL HEALTH DISTRICT [2026] NSWCATAP 262 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; S L Handebo, Principal Member; Dr B McPhee, Senior Member (Professional) Catchwords: GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether Tribunal addressed whether proposed guardian satisfied criteria in s 17(1) of the Guardianship Act
PROCEDURAL FAIRNESS — whether parties’ misunderstanding of the role of a separate representative meant they were denied a reasonable opportunity to be heard
LEAVE TO APPEAL — principles governing exercise of discretion to grant leave to appeal from decision made by NCAT — whether finding by Tribunal that family conflict was likely to be exacerbated if a family member were to be appointed guardian or manager was against the weight of evidence
PRACTICE AND PROCEDURE — power to deal with appeal by way of a new hearing — s 80(3)(a) of the Civil and Administrative Act 2013 (NSW) |
YWQ v YWR [2026] NSWCATAP 263 Appeal from the Guardianship Division Decision of: A Britton, Deputy President; J Toohey, Senior Member; M Bain, Senior Member Catchwords: PROCEDURAL FAIRNESS — Hearing Rule — adequate notice of hearing ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW), 2013 s 41 — internal appeal — extension of time in which to lodge notice appeal — exercise of discretion |
Younger v Deason [2026] NSWCATAP 264 Appeal from the Consumer and Commercial Division Decision of: S D Westgarth, Deputy President; J McAteer, Senior Member Catchwords: DIVIDING FENCES – sufficient dividing fence – relevant considerations – fence not on boundary line – whether error of law established |
Chater v Le Clair [2026] NSWCATAP 265 Appeal from the Consumer and Commercial Division Decision of: S de Jersey, Principal Member; J Redfern, Senior Member PSM Catchwords: LAND LAW — Strata title — Common property defects —— Whether lot owner liable under s 153 Strata Schemes Management Act 2015 in nuisance for leaking balcony — apportionment of liability for damages between the lot owner and the owners corporation — constructive failure to exercise jurisdiction |
McMullen v Insurance and Care NSW [2026] NSWCATAP 266 Appeal from the Administrative and Equal Opportunity Division Decision of: K Robinson, Principal Member; C Mulvey, Senior Member Catchwords: APPEALS – questions of law – procedural fairness – adequacy of reasons – fresh evidence - no error on a question of law identified - leave - access to information – legal professional privilege – conclusive presumption against disclosure – appeal dismissed |
Stewart v Masterpiece Caravans Pty Ltd (No 2) [2026] NSWCATAP 267 Appeal from the Consumer and Commercial Division Decision of: P Durack SC, Senior Member; S Hennings, Senior Member Catchwords: APPEAL – costs – consumer claim – amount in dispute on appeal in excess of $30,000 - first respondent with legal representation a successful party – costs should follow the event. |
Connolly v Goh [2026] NSWCATAP 268 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; J Gatland, Senior Member Catchwords: LEASES AND TENANCIES – residential tenancy agreement – consent order for payment of rental arrears – whether consent orders could be set aside |
O’Sullivan v Commissioner of Police, NSW Police Force [2026] NSWCATAP 269 Appeal from the Administrative and Equal Opportunity Division Decision of: K Robinson, Principal Member Catchwords: APPEALS – extension of time - application for extension of time to lodge appeal – no satisfactory explanation for delay – no fairly arguable error on a question of law or other error requiring leave to appeal – application for extension of time refused – appeal dismissed |
Adams v Van Go Fit Pty Ltd [2026] NSWCATAP 270 Appeal from the Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; Dr D Goldman, Senior Member Catchwords: APPEALS — Procedural fairness — Failure to provide transcript or sound recording of hearing — Attempt by appellant to rely on his own evidence of what proceeded at the hearing
APPEALS — Failure to give adequate reasons — no question of principle
CONTRACTS — repudiation by the consumer |
Secretary, Department of Customer Service v Tricon Builders Pty Ltd [2026] NSWCATAP 271 Appeal from the Administrative and Equal Opportunity Division Decision of: Dr J Lucy, Principal Member; A Lo Surdo SC, Senior Member Catchwords: APPEAL – whether appeal on each of five grounds is on a question of law – where some purported questions of law not material to the appeal - where some purported questions of law not identified with precision – whether the Tribunal failed to address contentions seriously advanced by the regulator – whether the regulator made substantial, clearly articulated arguments to which the Tribunal did not respond - whether the Tribunal erred by imposing an onus of proof on the regulator – whether the regulator has an obligation to prove disciplinary allegations in proceedings for administrative review of a disciplinary decision – relevance of principle in Briginshaw v Briginshaw (1936) 60 CLR 336 – whether leave to appeal should be granted in respect of the appeal grounds which are not on a question of law |
Karnauchow v Commissioner of Corrective Services [2026] NSWCATAP 272 Appeal from the Administrative and Equal Opportunity Division Decision of: Seiden SC DCJ, Deputy President; J Sullivan, Senior Member Catchwords: APPEAL — Anti-Discrimination Act 1977 (NSW) —Whether federal jurisdiction — Tribunal has jurisdiction to resolve APPEAL — Discrimination — Discrimination on the basis of disability and homosexuality — Where computer policy of respondent dependent on inmate security classification — Where appellant is a maximum security inmate — Where appellant seeks in-cell access to laptop computer with specific functionality — Whether policy that such a computer be accessed in a shared space was a condition or requirement — Whether requirement or condition was raised by appellant at first instance
PRACTICE AND PROCEDURE — Felons (Civil Proceedings) Act 1981 (NSW) applies to the Tribunal — Appellant granted leave |
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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. |
