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| NCAT Appeal Decisions Digest November 2018 Decisions
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The NCAT Appeal Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
The following decisions were handed down during November 2018. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Fuller v Combined Property Renewal Pty Ltd t/as Kempsey Tourist Village [2018] NSWCATAP 261, regarding the requirements of procedural fairness, and whether an agreement for the occupation of an on-site caravan is a residential tenancy; and
- Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275, which looked at whether the Tribunal had jurisdiction in respect of a matter involving the interaction of Commonwealth and NSW legislation.
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| Fuller v Combined Property Renewal Pty Ltd t/as Kempsey Tourist Village [2018] NSWCATAP 261
Consumer and Commercial Division - Tenancy
R C Titterton, Principal Member; D A C Robertson, Senior Member
The appellants occupied a house and two caravans at a caravan park owned by the respondent. Both parties applied to the Tribunal, with the respondent seeking to enforce a notice to terminate the tenancy agreement in respect of the house.
The Tribunal terminated the lease, and ordered the appellants to pay rental arrears and a daily occupation fee.
On appeal, the appellants said the Member had erred in law by (i) denying them procedural fairness, and (ii) applying incorrect legislation by making orders under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) instead of under the Residential Tenancies Act 2013 (NSW) (RT Act).
Held (allowing the appeal): (i) the appellants were denied procedural fairness in relation to the respondent’s application ([81]).
Although the “precise requirements of procedural fairness will depend on the circumstances of each case” ([74]), the duty consists of “two key rules” ([72]):
“the hearing rule, which requires a decision-maker to accord a person who may be adversely affected by a decision an opportunity to present his or her case;
the rule against bias, which requires a decision-maker not to have an interest in the matter to be decided and not to appear to bring a prejudiced mind to the matter.”
Aspects of procedural fairness are also embodied in s 38(5) and (6) of the NCAT Act ([73]).
Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [77] ([76]).
In this case, the Member failed to provide the appellants with a “fair opportunity to know and meet the case brought against them”. This was “compounded” by the Member “effectively forc[ing]” the amendment of the respondent’s application to add a claim for termination ([79]).
(ii) The Member applied the incorrect legislation ([94]), and seemed to misunderstand the scope and application of the RLLC Act and RT Act. Explaining the interplay of the two, the Appeal Panel noted that ([89]-[91]):
“The RLLC Act deals with the governance of residential communities …
[It] explicitly provides (see s 13(1)) that it does not apply to a tenancy agreement, except as otherwise provided. A tenancy agreement is defined in s 4 as a residential tenancy agreement within the meaning of the RT Act.”
Noting that the RLLC Act applies to agreements for the lease of sites on which a tenant installs their own caravan, an agreement by which a person is permitted to occupy a caravan is not a site agreement under that Act ([91]).
(iii) The Member failed to give adequate weight to any evidence submitted by the appellants ([102]). This finding is bolstered by the fact that the decisions made “no reference” to the appellant’s evidence. The Appeal Panel noted the rule in such circumstances:
“Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, the process of fact finding miscarries”.
Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [66], applied.
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| Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
Consumer and Commercial Division - Retirement Villages
M Harrowell, Principal Member; R Seiden SC, Principal Member
The appellant lives at a retirement village, owned by the respondent, with his dog, Rex. Section 55 of the Retirement Villages Act 1999 (NSW) provides that a resident must comply with the village rules, which, in this case, prohibit the keeping of dogs.
Notwithstanding the appellant’s contention that Rex is an assistance animal under s 9 of the Disability Discrimination Act 1992 (Cth) (DDA), the Tribunal ordered the removal of Rex from the village.
On appeal, noting that the dispute involved the interaction of Commonwealth and NSW legislation, and that only a Court may exercise federal jurisdiction (s 76(ii) of the Constitution), the major issue was whether the Tribunal had jurisdiction.
Held (allowing the appeal): (i) NCAT did not have jurisdiction to hear and determine the matter, so the original application should be dismissed ([6]-[7]).
There is no doubt that “adjudicative authority in respect of matters listed in ss 75 and 76 [of the Constitution] is to be exercised only by ‘courts’” ([16]).
Burns v Corbett Burns v Gaynor Attorney General for New South Wales v Burns Attorney General for New South Wales v Burns New South Wales v Burns [2018] HCA 15 at [49]; 92 ALJR 423 per Kiefel CJ, Bell and Keane JJ, applied.
In the event that the proceedings constitute a matter arising under a federal law “(ie: a federal matter), only a court of a State, as contemplated by the Constitution, has the authority to hear and determine the proceedings.” ([18]) Accordingly, “there are 2 questions that must be answered:
(1) whether these proceedings constitute a “matter”, as contemplated by s 76(ii) of the Constitution; and, if so,
(2) whether the Tribunal is a court of a State ….”
As to (2), Attorney General for New South Wales v Gatsby [2018] NSWCA 254 confirms the parties’ agreed position that NCAT is not a court of a State ([20]-[21]).
As to (1), the following principles were noted ([35]-[36]):
“A matter is the whole of a single justiciable controversy; where there is “a common substratum of facts” there is but a single matter: Re Wakim at [140]. …
For the Tribunal to consider only part of the controversy between the parties would not foster the interests of justice, where the task of the Tribunal is to quell controversy: Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [51]; Burns v Corbett at [21].”
On this basis, it was determined that “if a federal issue is raised in proceedings and that issue affects the determination of a claim that is otherwise justiciable in the Tribunal, the whole of the matter is a federal matter.” ([39])
As such, the federal issue (namely, the extent of any inconsistency between the village rules and the DDA) was sufficient to constitute the matter as a federal matter ([43]). This was, in part, because it was not possible to work out the effect of the village rule “without turning one’s mind to whether – and the extent to which – it is inconsistent with the DDA.” ([44])
Ultimately, the respondent’s conduct in requiring the removal of Rex under the village rules constituted discrimination under the DDA and was unlawful ([51]). Consequently, it was a federal matter, and the original decision should be quashed and the orders set aside ([55]).
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Ghazal v Masterton Homes Pty Ltd (No 2) [2018] NSWCATAP 258
Consumer and Commercial Division - Home Building
Decision of: A P Coleman SC, Senior Member; J S Currie, Senior MemberCatchwords: COSTS – appeal – no question of principle |
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Townsend v Setchell [2018] NSWCATAP 259
Consumer and Commercial Division - Tenancy
Decision of: S Higgins, Senior Member; T Simon, Senior Member Catchwords: APPEAL – Notice of Appeal – filed outside of the prescribed time – whether discretion to grant an extension of time should be granted – Appeal Panel not in a position to assess whether the appellant had an arguable case because, despite being directed to do so, the appellant failed to file and serve the sound recording of the Tribunal’s oral reasons for decision or copies of the material that was before the Tribunal below – extension of time refused |
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Guo v The Owners Strata Plan No 70067 [2018] NSWCATAP 260
Consumer and Commercial Division - Strata
Decision of: Prof I Bailey AM SC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEAL – Strata Schemes – appellant sought declarations as to s 104 of the Strata Schemes Management Act – power of Tribunal |
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Fuller v Combined Property Renewal Pty Ltd t/as Kempsey Tourist Village [2018] NSWCATAP 261
Consumer and Commercial Division - Tenancy
Decision of: R C Titterton, Principal Member; D A C Robertson, Senior MemberCatchwords: PRACTICE AND PROCEDURE – denial of procedural fairness – Tribunal proceeding when notice of hearing not received – Tribunal amending application on own motion LAND LAW – Residential Tenancies – caravan parks – whether agreement for occupation of an on-site caravan is a residential tenancy |
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Rockwell Constructions Pty Ltd v LLamas [2018] NSWCATAP 262
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; R Perrignon, Senior Member Catchwords: ERROR OF LAW – adequacy of reasons |
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Bartel v Ryan (No 2) [2018] NSWCATAP 263
Consumer and Commercial Division - Home Building
Decision of:R Titterton, Principal Member; D Fairlie, Senior Member Catchwords: COSTS – no question of principle |
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Builtex Constructions Pty Ltd v Ang [2018] NSWCATAP 264
Consumer and Commercial Division - Home Building
Decision of: R Titterton, Principal Member; D Goldstein, Senior MemberCatchwords: BUILDING AND CONSTRUCTION – whether Tribunal erred in denying procedural fairness to a party by proceeding in its absence |
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Saqa v Kashro [2018] NSWCATAP 265
Consumer and Commercial Division - Tenancy
Decision of: S Higgins, Senior Member; T Simon, Senior MemberCatchwords: APPEAL – Residential Tenancy – tenant made a claim seeking repayment from the landlord of the amount he had paid to a retail electricity supplier in electricity charges during the period of his tenancy – the claim was made on the basis that the residential premises the subject of his residential tenancy agreement with the landlord were not separately metered – the Tribunal below found that the tenant’s application fell within s 47 of the Residential Tenancies Act 2010 (RT Act), s 47(5) of which gave the Tribunal a discretion as to whether to make the order sought – Tribunal below dismissed the tenant’s application in the exercise of that discretion APPEAL – whether Tribunal took into account an irrelevant consideration in the exercise of its discretion under s 47(5), namely the oral agreement of the parties at the commencement of the tenancy that the tenant would pay the electricity charges but would not pay the water charges which was void under s 21 of the RT Act because it was contrary to ss 38(1)(a) and 40(1)(c) |
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Zidar v Department of Justice (No 4) [2018] NSWCATAP 266
Administrative and Equal Opportunity Division
Decision of: The Hon F Marks, Principal Member; Dr J Lucy, Senior Member Catchwords: NAME OF PARTY – application incorrectly named applicant party – correct name substituted RECORDING OF TRIBUNAL PROCEEDINGS – application by party – held no valid reason for exercise of discretion
COSTS – application by respondent – application of s 60 of Civil and Administrative Tribunal Act – held appropriate to make costs order
COSTS – application by applicant for refund of disbursements paid to Tribunal and for compensation – held no power to consider such application – costs order refused |
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Gravina v Ruehl [2018] NSWCATAP 267
Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; L Wilson, Senior Member Catchwords: RESIDENTIAL TENANCY – renovation work carried out by Body Corporate resulted in dust and other substances containing excessive lead levels entering premises – expert reports – premises cleaned – held rent abated for a period of 4 days |
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Gleeson v The Owners – Strata Plan No 48226 (No 2) [2018] NSWCATAP 268
Consumer and Commercial Division - Strata
Decision of: R Titterton, Principal Member; G Sarginson, Senior Member Catchwords: COSTS – relevant costs rule on appeal where applicants claimed that respondent had unreasonably refused to repeal by-laws – r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) does not apply – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) does apply |
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Legend Signage Pty Ltd v Australian Managed Print Solutions Pty Ltd [2018] NSWCATAP 269
Consumer and Commercial Division - General
Decision of: G K Burton SC, Senior Member; D A C Robertson, Senior MemberCatchwords: CONSUMER LAW – consumer guarantees – issues not addressed – errors of law |
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Nadarasa v Vansan Construction Pty Limited [2018] NSWCATAP 270
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; L Pearson, Principal MemberCatchwords: APPEAL – home building claim – contract – construction and interpretation of home building contract – cl 17(a) of the BC4 Residential Building Contract (May 2012) –whether Tribunal erred in interpretation and application of the clause |
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Wang v D F Johnson Pty Ltd [2018] NSWCATAP 271
Consumer and Commercial Division - Commercial
Decision of: G K Burton SC, Senior Member; J McAteer, Senior Member Catchwords: COMMERCIAL CLAIM – landlord and managing agent – no basis for leave – no error of law – turns on own facts |
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O'Neill v Community Association DP 270158 [2018] NSWCATAP 272
Consumer and Commercial Division - Strata
Decision of: G K Burton SC, Senior Member; D Goldstein, Senior Member Catchwords: COMMUNITY ASSOCIATION – community management statement – relationship with environmental legislation – no error of law – no basis for leave to appeal |
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Cahn v The Owners – Strata Plan 586 (No 2) [2018] NSWCATAP 273
Consumer and Commercial Division - Strata
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal MemberCatchwords: COSTS – strata dispute – s 60 of the Civil and Administrative Tribunal Act, 2013 – absence of special circumstances |
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Valencia v Blue Haven Pools South Pty Ltd [2018] NSWCATAP 274
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; J Kearney, Senior MemberCatchwords: PRACTICE AND PROCEDURE – time to appeal – extension of time application – refused – no adequate explanation and no reasonable prospects of success |
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Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
Consumer and Commercial Division - Retirement Villages
Decision of: M Harrowell, Principal Member; R Seiden SC, Principal Member Catchwords: JURISDICTION – Constitution – federal matter – power to resolve vested in court of a State – Tribunal has no jurisdiction to resolve |
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Nowak v Pellicciotti (No 2) [2018] NSWCATAP 276
Consumer and Commercial Division - Strata
Decision of: R C Titterton, Principal Member; D A C Robertson, Senior MemberCatchwords: COSTS – whether events outside of the hearing, including the taking out of an Apprehended Personal Violence Order, constitute special circumstances |
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Catapult Constructions Pty Ltd v Denison (No 3) [2018] NSWCATAP 277
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; G Sarginson, Senior Member Catchwords: APPEAL – Home Building Act s 48O, work order amended – costs of appeal – Appeal Panel jurisdiction as to costs in first instance proceedings s 81 |
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Gigg v Rodney Rodney Alan Wilks atf the Wilks Family Trust [2018] NSWCATAP 278
Consumer and Commercial Division - Home Building
Decision of: G K Burton SC, Senior Member; Dr J Lucy, Senior Member Catchwords: CONSUMER CLAIM – waste water treatment system – alleged defective supply, installation and initial maintenance – no error of law affecting outcome – no basis for leave |
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Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279
Consumer and Commercial Division - Home Building
Decision of: M Harrowell, Principal Member; K Rosser, Principal MemberCatchwords: RENEWAL PROCEEDINGS – terms of work orders – lack of specificity – interpretation of work order – use of reasons for decision and extrinsic material – assessment of loss or refund following non-compliance with work order |
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Florida Kitchens Pty Ltd v No 1 Cutting Service Pty Ltd [2018] NSWCATAP 281
Consumer and Commercial Division - Home Building
Decision of: S Higgins, Senior Member; D A C Robertson, Senior Member
Catchwords: APPEAL – procedural fairness – whether preventing the continuation of a line of cross examination was a breach of procedural fairness BUILDING AND CONSTRUCTION – home building – parties to contract – contract not in writing – contractor unlicensed – whether contractor entitled to quantum meruit
COSTS – whether special circumstances – relevance of offer made in Local Court before proceedings transferred to Tribunal – relevance of offer to costs on appeal |
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DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282
Administrative and Equal Opportunity Division
Decision of: S Higgins, Senior Member; Dr J Lucy, Senior Member Catchwords: APPEALS – Administrative Review – where, in 2018, the appellant made an application for external review of the conduct of the respondent under s 55(1) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) – where, on the application of the respondent the Tribunal dismissed the appellant’s application as it found that the appellant’s 2016 complaint to the respondent was not a request for internal review under s 53(1) of the PPIP Act – whether dismissal decision interlocutory or ancillary – whether Tribunal erred in dismissing the appellant’s application – no error found |
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Hurley v Hurley [2018] NSWCATAP 283
Consumer and Commercial Division - Tenancy
Decision of: The Hon F Marks, Principal Member; L Wilson, Senior Member Catchwords: RESIDENTIAL TENANCY – appeal from decision to terminate tenancy – arrangement between mother and son that son could reside in her home and pay board and lodging-held constituted residential tenancy subject to the provisions of the Residential Tenancy Act and amenable to termination order for non-payment of rent – proceedings dismissed because lacking in substance and for want of prosecution – costs reserved Practice and procedure – appellant unable to appear at appeal hearing –adjournment refused |
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Griffen v Gunida Gunya Aboriginal Corporation [2018] NSWCATAP 284
Consumer and Commercial Division - Social Housing
Decision of: R Titterton, Principal Member; J Kearney, Senior Member Catchwords: APPEAL – question of law – adequacy of reasons WORDS AND PHRASES – Residential Tenancy Act 2010, s 90 – undue hardship |
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Liang v University of Technology, Sydney [2018] NSWCATAP 285
Consumer and Commercial Division - General
Decision of: R Titterton, Principal Member; J Kearney, Senior Member Catchwords: APPEALS – where appellant claims unfairly treated by a university in the provision of teaching services – no question of law – leave to appeal refused – no question of principle |
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Webb v Port Stephens Council (No 3) [2018] NSWCATAP 286
Administrative and Equal Opportunity Division
Decision of: S Higgins, Senior Member; K Ransome, Senior Member Catchwords: ADMINISTRATIVE LAW – merit review of decision of the respondent administrator under the Government Information (Public Access) Act 2009 – open access information – conclusive public interest against disclosure – legal professional privilege ADMINISTRATIVE LAW – merit review of decision of the respondent administrator under the Government Information (Public Access) Act 2009 – open access information – overriding public interest against disclosure – personal information and expose a person to a risk of harm |
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GNZ Enterprises Pty Ltd v Carmody [2018] NSWCATAP 287
Consumer and Commercial Division - General
Decision of: K Rosser, Principal Member; J Kearney, Senor Member Catchwords: COSTS – no special circumstances |
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Steward v McKay [2018] NSWCATAP 288
Consumer and Commercial Division - Tenancy
Decision of: R Titterton, Principal Member; D Charles, Senior Member Catchwords: APPEAL – claim by one co-tenant against other co-tenants for return of bond – in circumstances where bond already returned to landlord with consent of tenants |
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Chalhoub v Astro Real Estate Holding Pty Ltd (No 2) [2018] NSWCATAP 289
Consumer and Commercial Division - General
Decision of: The Hon F Marks, Principal Member; L Wilson, Senior Member Catchwords: APPEAL – successful respondent sought costs order – special circumstances not established – costs order refused |
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Hayek v DockPro Pty Ltd [2018] NSWCATAP 290
Consumer and Commercial Division - GeneralDecision of: The Hon F Marks Principal Member; D Goldstein Senior Member Catchwords: APPEAL – contract for purchase of sea pen – conflicting evidence by appellant and respondent as to contractual terms – finding at first instance that evidence of respondent to be preferred – held in circumstances where the respondent fails to call evidence from the person with whom the appellant was dealing leads to conclusion that appellant’s evidence is to be preferred – decision against the weight of the evidence – leave to appeal granted – appeal upheld – consequential orders made |
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Oh v Cafe Great Pty Ltd [2018] NSWCATAP 291
Consumer and Commercial Division - Commercial
Decision of: Hennessy LCM, Deputy President; J McAteer, Senior Member Catchwords: APPEAL – retail leases – question of law – whether the Tribunal at first instance made findings on critical questions of fact – whether the Tribunal gave adequate reasons for its findings |
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