| | | | | | | | NCAT Appeal Decisions Digest February 2017 Decisions
|
| | The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following NCAT Appeal Panel decisions were handed down during the month of February 2017. Each case title is hyperlinked to the full decision available on NSW Caselaw. |
| |
| Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Consumer & Commercial Division - Residential parks
Judgment of: Wright J, President; R Seiden SC, Principal Member; R Titterton, Senior Member
Summary: The Appeal Panel considered the application of r 38(1)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules), which provides the Tribunal with a discretion to award costs in CCD proceedings and appeals from those proceedings, in the absence of special circumstances, where “the amount claimed or in dispute in the proceedings is more than $30,000.”
The Appeal Panel first turned its attention to the word “proceedings”, which is used in the NCAT Act and NCAT Rules “on many occasions” (at [34]), and held that:
[37] “[E]xamples from the NCAT Act and the NCAT Rules demonstrate that “proceedings” refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with s 44 of the NCAT Act and the NCAT Rules.”
The Appeal Panel was subsequently tasked with determining the meaning of the phrase “amount… in dispute”. Adapting the NSW Court of Appeal’s judgment in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 (at [80]), which considered the application of a similar provision, s 101(2)(r)(i) of the Supreme Court Act 1970 (NSW), the Appeal Panel (at [57]) held that:
“(1) The determinative factor is the amount in dispute in each appeal, not the amount in dispute in the proceedings at first instance;
(2) The phrase “in dispute” is to be construed as meaning truly in dispute or at issue or, inversely, not unrealistically in dispute;
(3) Whether “the amount … in dispute” in each appeal is more than $30,000 depends on whether there is a realistic prospect that in each appeal the wealth of the appealing party would be changed by more than $30,000 or, put another way, whether the right claimed by the appealing party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000;
(4) The fact that the value of the property the subject of any appeal exceeds $30,000 does not, of itself, mean that “the amount … in dispute” in that appeal is greater than $30,000.”
Ultimately, the Appeal Panel (at [69]) held that “in each of the appeals we cannot conclude that the amount in dispute was more than $30,000.” |
| 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29
Consumer & Consumer Division - Commercial
Judgment of: Cowdroy OAM QC ADCJ, Principal Member
Summary: The Appeal Panel was tasked, inter alia, with determining whether or not to make an order for fixed sum costs. The Appeal Panel considered recent decisions of the NSW Court of Appeal, including Hamod v State of New South Wales [2011] NSWCA 375 at [813]ff; eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 at [8]ff and [30]; and Kostov v Zhang (No 2) [2016] NSWCA 279 at [19]ff, which set out the principles concerning when a Court might make a gross sum costs order.
The Appeal Panel (at [40]) adapted these principles to the circumstances of the Tribunal and held the following to be relevant to the exercise of its discretion in making a fixed sum costs order:
“(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with “ordered costs”) and the Legal Profession Uniform Law (NSW), eInduct Systems at [8];
(2) A fixed sum costs order may be appropriate where:
(a) the sum of costs in question is relatively modest, eInduct Systems at [30];
(b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30];
(c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or
(d) the case was complex, Hamod at [815]-[817];
(3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration:
(a) the relative responsibility of the parties for the costs incurred;
(b) the degree of any disproportion between the issue litigated and the costs claimed;
(c) the complexity of the proceedings in relation to their cost; and
(d) the capacity of the unsuccessful party to satisfy any costs liability,
Hamod at [816], Kostov at [22].
(4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820];
(5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23].”
Furthermore, the Appeal Panel (at [45]) addressed the circumstances in which it might be appropriate for the Tribunal to assess costs on a fixed sum basis, observing that:
“Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses, see generally: Gino Dal Pont, Law of Costs (3rd ed, 2013) at 171-174.”
Finally, the Appeal Panel (at [52]) considered the making of a fixed sum costs order in circumstances where the Tribunal would be required to calculate what constituted fair and reasonable costs for the work of a non-lawyer advocate, finding that:
“It is not obvious to me that the hourly rates charged by a senior associate or another solicitor in a solicitor’s firm provide an appropriate comparator or basis upon which to assess the fairness and reasonableness of the rates charged for work done by a non-lawyer advocate. I am also not confident as to how the training, experience, qualifications, insurance position and professional and ethical duties of an advocate such as Mr Soltan compare with those of a senior associate or any other lawyer or non-lawyer advocate. Nor am I confident as to the impact this should have on any assessment of fair and reasonable hourly rates for Mr Soltan’s work. These matters are appropriately left to a costs assessor, in a matter such as the present” |
| TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41
Consumer & Consumer Division - General
Judgment of: Wright J, President; M Harrowell, Principal Member
Summary: The Appeal Panel considered the consequences of implying a term for performance within a reasonable time, in circumstances where the Tribunal at first instance had held that a contract between the parties failed due to incompleteness.
The Appeal Panel followed the statement of Dixon J (as he then was) of the High Court, in Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13, that “[a]n implication of a reasonable time when none is expressly limited is, in general, to be made unless there are indications to the contrary” and, subsequently, held that the absence of such a term did not doom the contract to failure.
In allowing the appeal, however, the Appeal Panel did not make a finding on whether a term for performance within a reasonable time should have, in fact, been implied (at [26]). This was because the Tribunal below failed to give adequate reasons for its conclusion that the contract had failed due to incompleteness (at [26] and [29]).
Ultimately, the Appeal Panel remitted the matter for further hearing, holding that, if a contract were to come into existence with such an implied term, it would then be necessary to decide whether and, if so, how the contract came to an end. The Appeal Panel (at [34]) observed that this might involve determining whether:
“(1) There was a repudiation of the contract by one party so as to entitle the other party to accept the repudiation, terminate the contract and recover damages for breach of contract, see McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-477;
(2) The contract was rescinded or terminated by express agreement based on the communications between the parties and whether that agreement included a term as to the return or retention of the deposit, see generally J W Carter, LexisNexis, Carter on Contract (at 21 February 2017) [32-050] and [32-060];
(3) The contract was terminated by abandonment, which can be seen as a form of implied agreement to terminate, and whether there was any express or implied term as to the return or retention of the deposit, see for example Ryder v Frohlich [2004] NSWCA 472 at [135]-[137], DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423; [1978] HCA 12 at 434; Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33 at 153;
(4) The contract was terminated in some other way and what are the consequences.”
|
| BTH v The Public Guardian [2017] NSWCATAP 10;Udy v Tilley [2017] NSWCATAP 30;
Lovick Engineering Pty Limited v Keith Johnson Family Trust trading as Johnson’s Towing and Mechanical Pty Limited [2017] NSWCATAP 35;
TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41;
Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44;
Khan & Anor v Zaicos & Anor [2017] NSWCATAP 50
In a number of recent decisions, the Appeal Panel was called on to consider the adequacy of reasons of the Tribunal below. The following principles may be derived from these decisions: - There exists a duty on the Tribunal to give adequate reasons at common law and under statute, Udy v Tilley [2017] NSWCATAP 30 at [31]-[33];
- Under s 62(3) of the NCAT Act, a written statement of the Tribunal’s reasons must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal’s understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
- However, s 62 does not exhaust the scope of the Tribunal’s duty to give adequate reasons, Udy v Tilley at [33];
- The failure to give adequate reasons constitutes a question of law for which a party to the proceedings at first instance has a right of appeal under s 80(2)(b) of the NCAT Act, TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 at [27];
- Furthermore, a failure to give adequate reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice, BTH v The Public Guardian [2017] NSWCATAP 10 at [63], citing Pollar v RRR Corp [2009] NSWCA 110 at [57];
- The nature and extent of the reasons required are variable and depend upon the circumstances of the particular case. However, reasons should be sufficient to enable an aggrieved party to exercise any rights of appeal: see for example the cases referred to in Collins v Urban [2014] NSWCATAP 17 at [49]ff, TAG Aviation Pty Ltd v Kirk at [28];
- The task of an appellate body, in determining whether a decision-maker at first instance provided adequate reasons, is to determine whether the reasons provided have reached a minimum acceptable level. It is not the function of an appellate body to set standards as to the optimal, or even desirable, level of detail required, BTH v The Public Guardian at [64], citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Basten J) at [48].
|
|
|
| | | Keyword summaries of NCAT Appeal Panel decisions made during February 2017.
|
| Abdel-Messih v Dai [2017] NSWCATAP 20
Consumer & Commercial Division - Tenancy
Judgment of: S Westgarth, Deputy President; D Fairlie, Senior Member Catchwords: Subtenancies under the Residential Tenancies Act |
| Quader v Bell [2017] NSWCATAP 24
Consumer & Commercial Division - Tenancy
Judgment of: M Harrowell, Principal Member; A Boxall, Senior Member Catchwords: RESIDENTIAL TENANCIES ACT - application by tenant to have termination notice declared retaliatory under s115 and seeking orders for rent reduction and in connection with breach of landlord’s obligation to repair. SEPARATE QUESTION - previous hearing of s115 application as part of landlord’s application for a termination order under s85. APPEALS - appealable decisions, termination order and s115 claim subject to earlier appeal decision dismissing appellant’s appeal. No right to appeal decision of Appeal Panel made in earlier appeal to the Appeal Panel. ORDERS - order for repairs and payment of rent to Tribunal pending completion of repairs- Premises vacated and tenancy terminated, no utility in orders. RENT REDUCTION - repairs to premises, landlord attending to repairs when notified, no interference with quiet enjoyment, no reduction or withdrawal of goods, services or facilities by the landlord |
| Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Consumer & Commercial Division - Residential parks
Judgment of: Wright J, President; R Seiden SC, Principal Member; R titterton, Senior Member Catchwords: COSTS – whether amount claimed or in dispute in proceedings more than $30,000 – whether there are any “special circumstances” to warrant an award of costs – amount claimed or in dispute not more than $30,000 – no special circumstances – costs not awarded WORDS AND PHRASES – “proceedings” – “amount claimed” and “amount … in dispute” – Civil and Administrative Tribunal Rules 2014 (NSW), r 38(2)(b) |
| Owen v Kim [2017] NSWCATAP 26
Consumer & Commercial Division - Tenancy
Judgment of: K Rosser, Principal Member; D Goldstein, Senior Member Catchwords: APPEAL - Application for leave to appeal - What constitutes significant new evidence not reasonably available at the time the proceedings were dealt with |
| | Toberty v Lacey [2017] NSWCATAP 28
Consumer & Commercial Division - Tenancy
Judgment of: L Pearson, Principal Member; D Charles, Senior Member Catchwords: APPEAL: Residential tenancies – landlord’s claim for compensation – tenant’s claim for return of rental bond – whether denial of procedural fairness – whether no evidence for finding – whether leave to appeal should be granted ADMINISTRATIVE LAW: extension of time in which to appeal – extension of time to adduce evidence – discretion PROCEDURE: Adjournment application – reasons for refusal |
| | Udy v Tilley [2017] NSWCATAP 30
Consumer & Commercial Division - Tenancy
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals; S Thode, Senior Member Catchwords: ADEQUACY OF REASONS - Orders made in respect of residential tenancy claim – Tenant applies for written reasons – Refused – Appeal lodged - Second set of reasons issued after lodgment of appeal - Second set of reasons to be disregarded –ADMINISTRATIVE LAW - Apprehension of Bias - Failure of due process – Consideration of reasons accompanying original notice of order – Held inadequate. Orders under appeal set aside, application remitted. |
| Solomons v Valley Motor Auctions Pty Ltd [2017] NSWCATAP 31
Consumer & Commercial Division - Motor Vehicles
Judgment of: Cowdroy ADCJ, QC, Principal Member Catchwords: COSTS - appellant abandoning appeal - costs claimed by the respondent - whether Part 38 applied to original claim - appellant unrepresented – respondent entitled to be compensated for costs incurred in abandoned appeal |
| Hull v Gibbs [2017] NSWCATAP 32
Consumer & Commercial Division - Tenancy
Judgment of: J Harris SC, Senior Member; S Thode, Senior Member Catchwords: Breach of Residential Tenancy Agreement |
| Wade v Commissioner for Fair Trading [2017] NSWCATAP 33
Administrative & Equal Opportunity Division - Administrative review
Judgment of: K O’Connor, AM, ADCJ, Deputy President, Appeals; S Montgomery, Senior Member Catchwords: OCCUPATIONAL REGULATION – Tattoo Parlours Industry – Refusal of operator licence – cancellation of tattooist licence – following adverse security determination by Commissioner of Police – Affirmed by Tribunal – APPEAL– Whether Tribunal had regard to relevant considerations – Appeal dismissed |
| ZCV v ZCW [2017] NSWCATAP 34
Guardianship Division
Judgment of: Hennessy LCM, Deputy President; R Titterton, Senior Member; B Field, General Member Catchwords: PROTECTIVE JURISDICTION – financial management order – suitability of person to be appointed as financial manager – findings of fact with no evidence |
| | AIN v Medical Council of New South Wales [2017] NSWCATAP 36
Administrative & Equal Opportunity Division - Administrative review
Judgment of: Hennessy LCM, Deputy President; P Durack SC, Senior Member Catchwords: APPEAL – privacy and personal information protection - administrative review of conduct - procedural directions – substantive procedural course decided before directions hearing – variation of interlocutory orders – provision of documents under s58 of the Administrative Decisions Review Act - alleged bias. |
| | Walsh v Sandeberg & Anor [2017] NSWCATAP 38
Consumer & Commercial Division - Home Building
Judgment of: J Harris SC, Senior Member; D Goldstein, Senior Member Catchwords: DAMAGES - Assessment of damages – reasonableness of rectification costs, procedural fairness |
| Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Consumer & Commercial Division - Motor Vehicles
Judgment of: Hennessy LCM, Deputy President; D Robertson, Senior Member Catchwords: CONSUMER CLAIM – appeal from decision dismissing application under Australian Consumer Law – whether decision not fair and equitable or against the weight of evidence – whether new evidence should be admitted |
| | TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41
Consumer & Commercial Division - General
Judgment of: Wright J, President; M Harrowell, Principal Member Catchwords: CONTRACTS – general contractual principles – where contract did not contain an express term for time of performance – whether contract void or unenforceable for uncertainty – whether term requiring performance within a reasonable time should be implied ADEQUACY OF REASONS – failure of Tribunal below to give adequate reasons – error of law established – relevant evidence not presently available to the Appeal Panel – matter remitted for new hearing |
| Wells v Mottram [2017] NSWCATAP 42
Consumer & Commercial Division - Tenancy
Judgment of: Wright J, President; R Titterton, Senior Member Catchwords: RESIDENTIAL TENANCY AGREEMENT – where Tribunal terminated agreement under s 84 of the Residential Tenancies Act but application referred only to s 87 |
| Bluey’s Ute World Pty Ltd v Dobson [2017] NSWCATAP 43
Consumer & Commercial Division - General
Judgment of: S Higgins, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – proceedings determined in the absence of party – party applied to set aside decision – application refused – no error of law – no foundation for leave to appeal. |
| Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44
Administrative & Equal Opportunity Division - Administrative review
Judgment of: K O’Connor AM, ADCJ, Deputy President, Appeals; Dr G Walker, Senior MemberCatchwords: OCCUPATIONAL REGULATION – Tattoo Parlours Industry – Refusal of operator licence – following adverse security determination by Commissioner of Police on grounds of fitness and public interest – Affirmed by Tribunal only on the ground that grant of the licence would not be in the public interest – relationship of the two grounds - meaning to be given to the public interest – no evidence – adequacy of reasons – illogicality – Appeal dismissed. |
| Johnson T/As One Tree Constructions & Ors v Lukeman & Anor [2017] NSWCATAP 45
Consumer & Commercial Division - Home Building
Judgment of: R Seiden SC, Principal Member; T Simon, Senior Member Catchwords: CIVIL AND ADMINISTATIVE TRIBUNAL (NSW) costs – discretion to award costs – general rule is each party is to pay their own costs – where party has been unsuccessful on some issues – where those issues have not significantly added to costs – characterisation as a mixed result |
| Kalice v Borck & Ors [2017] NSWCATAP 46
Consumer & Commercial Division - Tenancy
Judgment of: K Rosser, Principal Member; G Sarginson, Senior Member Catchwords: RESIDENTIAL TENANCIES - Failure of a party to appear - Procedural fairness |
| Sauvage v Cleardon Pty Ltd [2017] NSWCATAP 47
Consumer & Commercial Division - Commercial
Judgment of: R Seiden SC, Principal Member; D Robertson, Senior Member Catchwords: APPEAL – point not raised by Notice of Appeal – pure question of law – construction of standard form lease – point permitted to be raised – guiding principle LEASES – retail leases – Law Society lease - rent review clause – operation of provisions for market rent review - principles of construction |
| ZCY v ZCZ & Ors [2017] NSWCATAP 49
Guardianship Division
Judgment of: A Britton, Principal Member; J Kearney, Senior Member; L Porter, General Member Catchwords: APPEAL — pre-condition to the exercise of the power to renew Guardianship order — principles applying to the exercise of the power to grant leave to appeal — appeal allowed |
| Khan & Anor v Zaicos & Anor [2017] NSWCATAP 50
Consumer & Commercial Division - Tenancy
Judgment of: J Harris SC, Senior Member; J McAteer, Senior Member Catchwords: RESIDENTIAL TENANCY - Adequacy of reasons - Evidence of application to extend time – Guiding principle |
| ZDV v ZDW [2017] NSWCATAP 68
Guardianship Division
Judgment of: Hennessy LCM, Deputy PresidentCatchwords: STAY – where 30 day guardianship order appointing the Public Guardian made – subject person in hospital - daughter of subject person sought stay of decision so subject person could return to usual place of residence – utility of appeal when order made on temporary basis – referral to mediation |
| | |
