| | NCAT Appeal Decisions Digest September 2019 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 between 30 August and 4 October 2019. Each case title is hyperlinked to the full decision available on NSW Caselaw.
The latest issue features summaries of recent Appeal Panel decisions, including: - Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 [2019] NSWCATAP 229
- Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224
- Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249
|
| |
| Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 [2019] NSWCATAP 229
Consumer and Commercial Division - Home Building
Armstrong J, President; L Pearson, Principal Member
The appellant carried out construction work on a residential apartment building between 2010 and 2011. Three occupation certificates were issued in respect of the development – two ‘interim certificates’ in September 2011 and one ‘final certificate’ in October 2011. However, the first two certificates did not comply with numerous conditions attached to the initial development consent ([6]-[13]).
In October 2018, the respondent filed a home building application against the appellant, alleging certain breaches of statutory warranties under the Home Building Act 1989 (HB Act), including in relation to structural defects. A preliminary hearing was held on the issue of whether the claim was time-barred under s 48K(7) of the HB Act, and therefore whether Tribunal had jurisdiction to hear it ([15]).
This depended on the claim having been filed within the limitation period under s 18E(1) of the HB Act, which (in 2011) required that proceedings for breach of a statutory warranty be commenced within 7 years after ‘completion of the work’. ‘Completion’, under s 3C(2) of the HB Act, occurs on ‘the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building’, being an ‘occupation certificate under the Environmental Planning and Assessment Act 1979’ (EPA Act) ([18]). Relevantly, s 109H(2) of the EPA Act provides that an occupation certificate must not be issued unless any preconditions specified in a development consent have been met ([72]).
If either of the ‘interim certificates’ issued in September 2011 were found to trigger the running of the limitation period, the respondent’s claim would have been out of time. If only the ‘final certificate’ was effective for ‘completion’, the claim would have been in time.
The Tribunal at first instance decided that the interim certificates were ineffective under s 3C(2), and so the claim was filed in time. The appellant appealed ([16]-[17]).
The grounds of appeal were ([20]-[21]):
- that the Tribunal had erred in concluding that s 3C of the HB Act required an occupation certificate to be ‘properly or validly issued’ under the EPA Act, as such a requirement was not supported by the express words of the HB Act.
- that the Tribunal did not have jurisdiction to determine the validity of an occupation certificate under the EPA Act. The appellant submitted that the Tribunal should treat the interim certificates as valid until found otherwise by a ‘court of competent jurisdiction’ (i.e. the Land and Environment Court).
Held (dismissing the appeal):
The Tribunal did have jurisdiction to consider whether the interim certificates had been validly issued under the EPA Act ([123]), and the Member at first instance did not err in finding that:
- neither interim certificate had been validly issued
- the reference to ‘occupation certificate’ in s 3C(2) of the HB Act did not apply to those documents; and
- the respondent’s application was not time-barred by s 48K(7) of the HB Act.
Whether the Tribunal could consider the validity of an occupation certificate
(i) The Tribunal has jurisdiction to decide a ‘building claim’ in accordance with Part 3A of the HB Act. The extent to which the Tribunal can decide other matters ‘necessary for the exercise of its jurisdiction’ raises a question of the Tribunal’s power of collateral review, or collateral challenge ([97], citing Cachia v Isaacs (1985) 3 NSWLR 366).
(ii) In Ousley v The Queen (1997) 192 CLR 69 (Ousley), the High Court found that collateral challenge in a court is permissible where the validity of an administrative decision is relevant to a finding of criminal guilt or civil liability ([99]). In that decision, McHugh J described ‘collateral attack’ as occurring when an ‘act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision’, but where ‘the validity of the administrative act is merely an incident in determining other issues’ (pp 98-99).
(iii) There is ‘limited authority on the extent to which a tribunal, as opposed to a court, can engage in collateral review’ ([102]).
(iv) In support of its position that the Tribunal does not have the power to collaterally review an administrative decision, the appellant here sought to rely on the Victorian Court of Appeal’s decision in Director of Housing v Sudi [2011] VSCA 266 (Sudi) – a case concerning the powers of the Victorian Civil and Administrative Tribunal (VCAT) ([103]). That decision found VCAT did not have jurisdiction to collaterally review the validity of a purported administrative decision that was material to the tenancy dispute before it ([104]). However, Warren CJ noted that different considerations might apply in respect of an administrative decision that was invalid on its face ([104]). Similarly, Weinberg JA noted support for the view that collateral review should be restricted to cases where the validity of the government act sought to be attacked can be determined on the face of the documentary material ([108]).
(v) The Appeal Panel considered Sudi to be authority for the proposition that whether an administrative tribunal, exercising judicial power, can consider an administrative act which is an ‘incident’ or element in determining issues in respect of which it has jurisdiction depends on the applicable legislation. Collateral challenge is not precluded but is subject to the limitations in Ousley ([110]).
(vi) The issue of an occupation certificate is an administrative, not a judicial, act (see s 109D(1)(c), EPA Act) ([113]).
(vii) Whether the Tribunal had jurisdiction to hear and determine the respondent’s building claim depended on whether it had been lodged in time, which in turn depended on the date of issue of an occupation certificate meeting the requirements of s 3C(2). Determination of that date was therefore a necessary step in concluding whether the application could be heard in the Tribunal ([114]).
(viii) Section 3C expressly requires an occupation certificate to be issued ‘under’ the EPA Act, raising the issue of ‘whether any document that purports to be an occupation certificate can be so regarded, or whether the use of the word “under” means “in accordance with”’ ([93]).
(ix) Section 3C further requires that an occupation certificate be a document that ‘authorises the occupation and use of the whole of the building’. In light of this language, and the purpose for which s 3C was introduced (as elucidated by the second reading speeches associated with its introduction), the key question for the Appeal Panel was ‘whether an occupation certificate issued in contravention of the requirements of the EPA Act or Regulation is a document that “authorises” the occupation and use of the whole of the building’ ([93]-[95]).
(x) Determining whether the builder could rely on the interim certificates to establish the date of completion did not involve adducing ‘substantial evidence’ beyond what was recorded on the face of the documents. It did not require the Tribunal to ‘go behind’ the certificates to determine whether they should have been issued. The Tribunal’s consideration of validity was limited to what was evident on the face of the documents ([115]-[116], citing Jacobs v One Steel Manufacturing Pty Ltd (2006) 93 SASR 568).
(xi) The Appeal Panel emphasised that, while the Tribunal could not conclusively determine the validity of the interim certificates, it was entitled, in order to determine whether the respondent’s application had been lodged in time under s 18E, to consider whether either document was an ‘occupation certificate’ for the purpose of s 3C(2) ([117], [122]).
(xii) Accordingly, ‘[i]n the circumstances of this case, where the invalidity was apparent on the face of the document and required no further evidence, and the question was central to the Tribunal’s jurisdiction, determination of the collateral challenge was both open and appropriate’ ([124]).
Whether the Tribunal erred in concluding that the occupation certificates were not validly issued
(xiii) Both of the interim certificates issued in September 2011 purported to be an ‘occupation certificate’ for the purposes of s 3C(2) of the HB Act. However, both explicitly identified conditions of the development consent that had not been satisfied, disclosing ‘on their face’ that s 109H(2) of the EPA Act had not been complied with ([118]).
(xiv) The appellant submitted that the Tribunal failed at first instance to apply the principles in Project Blue Sky [1998] HCA 28; (1998) 184 CLR 355 (Project Blue Sky) – that is, it failed to consider whether it was a purpose of the EPA Act that an act done in breach of s 109H(2) should be invalid ([119]).
(xv) However, the Appeal Panel concluded that the Tribunal’s decision that the interim certificates did not ‘authorise the occupation and use of the whole of the building’ under s 3C(2), was not inconsistent with Project Blue Sky. Had the Tribunal applied the principles of Project Blue Sky at first instance, the result would not have differed ([119], [121]).
(xvi) Applying those principles, the Appeal Panel was satisfied that the purpose of issuing an occupation certificate under the EPA Act is to ‘ensure compliance with the relevant legislative requirements and conditions before a building can be occupied, in order to protect against the risks associated with occupation of incomplete buildings’ [120]. Moreover, it noted that the requirement to ‘comply with readily identifiable conditions of [development] consent’ before a certificate is issued is ‘clearly stated’ in the Act, and does not depend on ‘vague’ criteria ([120]).
(xvii) Accordingly, the Appeal Panel found the Tribunal did not err in finding that the interim certificates were not validly issued under the EPA Act, and that, as a consequence, they did not meet the requirements to effect ‘completion’ of work under the HB Act. The application was made in time ([123]).
|
| Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224
Consumer and Commercial Division - General
S Higgins, Senior Member; P H Molony, Senior Member
The respondent was a ‘jobactive’ provider, engaged by the federal government to assist jobseekers in receipt of the Newstart allowance to prepare for work, and meet their obligations under Part 2.12 of the Social Security Act 1991 (Cth), which regulates eligibility for the allowance ([1], [11]-[12]). The appellant was a jobseeker on Newstart who was referred by Centrelink to the respondent’s jobactive program ([13]).
In March 2017 and January 2018, the appellant and respondent agreed on a ‘Job Plan’ for the appellant which set out her obligations in seeking and getting ready for work while receiving the Newstart allowance ([15]). As part of the plan, the respondent registered the appellant for an online ‘Certificate III in Business’ course provided by Training Online Australia Pty Ltd t/as Alffie (Alffie). The respondent paid $960 (excl GST) to Alffie, and was reimbursed by the Commonwealth (plus $96 GST which was ‘accounted for’ to the Australian Tax Office) ([17]-[18]).
In addition, the Commonwealth made four payments totalling $912.36 to the respondent. Each payment appeared on the appellant’s Commonwealth Employment Support Services electronic record system (ESS record) as being ‘for’ the appellant, and was labelled an ‘admin fee’ ([22]).
The appellant, unsatisfied with the training Alffie provided, applied to the Tribunal seeking orders that the respondent pay her $96 and $912.36, or pay those amounts back to the Commonwealth and amend her ESS records accordingly; and continue to provide training services to her up to March 2018 ([20]-[21]).
The member at first instance dismissed the appellant’s claim, finding that it was outside the Tribunal’s jurisdiction to order amendments to ESS records, and that the requests for ‘repayment’ of $96 and $912.36 should be refused because the ‘applicant made no payments on her own behalf’. The order requiring continued provision of training services was also refused, as it was ‘not supported by evidence’ ([25]).
The appellant sought to challenge the Tribunal’s findings in relation to her requests that the respondent pay her $912.36 to her, and that her ESS record be amended ([28]). The grounds of appeal were that the Tribunal erred in failing to make a decision about the payment of $912.36 (as the Tribunal only considered ‘repayment’), and failing to ‘holistically’ consider her request that her ESS record be amended ([31]). In her Notice of Appeal, written and oral submissions, she contended that:
- the respondent, being a ‘supplier of commercial services’, had engaged in unconscionable conduct contrary to the Australian Consumer Law (ACL) by failing to pay her the $912.36 received in her name ([30]);
- the respondent should not have accepted the payments as payments for her as she was not entitled to receive administrative fees ([30]); and
- she was a ‘consumer’ and the respondent was a ‘supplier’ of employment services pursuant to the Job Plan they agreed to ([33]).
Held (dismissing the appeal):
The Appeal Panel affirmed the first instance decision, but with different reasoning, on the basis that the Tribunal did not have jurisdiction because:
- the services provided by the respondent to the appellant were not provided ‘in trade or commerce’ as required under s 79F of the Fair Trading Act 1987 (NSW) (FT Act), which is a prerequisite to the Tribunal’s power to hear and determine consumer claims under the ACL ([51]); and
- amendment of the appellant’s ESS record is not a remedy falling within s 79E, nor an order the Tribunal has power to make under s 79N of the FT Act ([74]).
NCAT jurisdiction under the FT Act
(i) Section 29 of the FT Act provides that the ACL applies as a law of New South Wales ([52]). However, the Tribunal’s jurisdiction in ACL claims depends on satisfaction of the requirements in Part 6A of the FT Act ([53], citing Lam v Steve Jarvie Motors [2016] NSWCATAP 186; Kennett v Financial Ombudsman Service Ltd [2017] NSWCATAP 59 (Kennett); and Plath v Snowy Monaro Regional Council [2019] NSWCATAP 165 (Plath)).
(ii) In particular, s 79I of the FT Act provides that any ‘consumer’ may apply to the Tribunal for determination of a ‘consumer claim’ ([54]). ‘Consumer claim’ is defined in s 79E to mean a ‘claim by a consumer’ arising from a ‘supply of goods or services by a supplier to the consumer’, or ‘under a contract that is collateral to a contract for the supply of goods or services’ ([55]). As noted in Kennett, the Tribunal’s jurisdiction under s 79I further depends on the claim being made by a ‘consumer’ (s 79D), arising from a ‘supply’ (s 79G) of ‘services’ (s 79F) by a ‘supplier’ (s 79D) and seeking one of the remedies listed in s 79E(1) ([56]).
(iii) The Appeal Panel in this case noted the relevant elements were whether the appellant’s claim related to ‘services’ as defined in s 79F and whether it was for one of the remedies set out in s 79E(1) ([58]).
Services not provided in ‘trade or commerce’
(iv) Section 79F(1) defines ‘services’ as a reference to, in addition to a list of specific examples, ‘[a]ny other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce’.
(v) The Appeal Panel noted it is ‘well established’ that the examples in s 79F(1) are ‘affected by the general words’ in s 79F(1)(i), such that all ‘services’ under the FT Act must be provided ‘in trade or commerce’, defined in s 4 to ‘include any business or professional activity’ ([60]-[62], citing Kennett as upheld on appeal in Kennett v Financial Ombudsman Services Ltd [2017] NSWSC 1240).
(vi) The Appeal Panel referred to the interpretations of ‘trade and commerce’ given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA; (1990) 169 CLR 594 and the NSW Court of Appeal in Williams v Pisano [2015] NSWCA 177 ([64]-[65]). Based on the language adopted in those decisions, as well as the ‘consistent’ approach in Kennett and Plath, the Appeal Panel came to the conclusion that ‘the impugned ‘services’, the subject of a consumer claim under s 79E(1) of the FT Act, must be shown to have been provided, granted or conferred in circumstances that bear a trading or commercial character’ (emphasis added) ([68]).
(vii) Accordingly, although the Appeal Panel accepted that the respondent provided ‘services’ to the appellant, it was not satisfied that these were ‘provided, granted or conferred in trade or commerce’, that is, that they were ‘of a nature that bore a trading or commercial character’. The Job Plan entered into between the parties was ‘not an agreement made in a commercial setting, or one that bore a commercial character’, but rather, in the statutory context of Part 2.12 of the Social Security Act ([71]).
(viii) The Appeal Panel concluded that the appellant’s claim was ‘misconceived’, and the Tribunal had no jurisdiction. The appellant’s application for an extension of time was refused because her claim had ‘no prospects of success’ ([79]).
Remedy not within Tribunal’s jurisdiction
(ix) Section 79E(1) limits ‘consumer claims’ to those seeking certain remedies, being payment of money, supply of services, relief from payment of money, or delivery, return or replacement of goods. The Appeal Panel concluded that, even if the appeal were allowed on a question of law, the remedies the appellant requested would not be available to her under a ‘consumer claim’ before the Tribunal ([74]).
|
| Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249
Occupational Division
Armstrong J, President; L Pearson, Principal Member
The August edition of this bulletin summarised the decision in Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208. In brief, the Appeal Panel allowed an appeal against the Tribunal’s decision to uphold the respondent’s refusal of the appellant’s application for a contractor licence under the Home Building Act 1989 (NSW) (HB Act) on the basis that the appellant was not a ‘fit and proper person’ ([1]-[2]).
At first instance, the respondent had failed to provide two documents to the Tribunal which the Appeal Panel considered to be credible and relevant ([3]). The respondent conceded on appeal that these documents should have been produced under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) ([4]). The Appeal Panel found that the failure to provide the documents resulted in a ‘working of an injustice’ for the appellant ([4]), and the Tribunal did not have all relevant material before it on which to make a ‘correct and preferable decision’ ([5]). The Appeal Panel therefore granted leave to appeal and allowed the appeal, ordering that the issue of whether Mr Edwards was a ‘fit and proper person’ to hold a licence under the HB Act be remitted to a differently constituted Tribunal.
Held (allowing the appellant’s claim for costs):
(i) ‘Special circumstances’ existed within the meaning of ss 60(2) and (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) such that the respondent should be ordered to pay the appellant’s costs for the appeal proceedings ([33]).
(ii) Special circumstances are circumstances which are out of the ordinary, but need not be exceptional or extraordinary ([9]).
(iii) The Appeal Panel rejected the respondent’s submission that, because the failure to produce was a simply administrative error and not the product of unreasonable behaviour or impropriety, it could not be considered out of the ordinary ([15]-[16]).
(iv) The NSW Court of Appeal noted in Cripps v Dawson [2006] NSWCA 81 that ‘unreasonable conduct that is out of the ordinary’ and ‘conduct that is grossly unreasonable’ could ‘attract’ exercise of the Tribunal’s power to award costs. However, it does not follow that circumstances may only be considered out of the ordinary if there is ‘unreasonable’ or ‘grossly unreasonable’ behaviour, in the sense of deliberate or wilful conduct ([15]-[16]).
(v) A narrower interpretation of s 60 would unduly fetter the Tribunal’s to award costs. Whether or not conduct has been deliberate can be a factor under s 60(3), however, it was not necessary (or practicable) to consider this in order to dispose of the costs issue here ([17]).
(vi) Consideration of whether the failure to produce relevant documents gave rise to ‘special circumstances’ did not depend on any consideration of whether production of those documents would have changed the first instance decision ([22], [26]). Rather, the Appeal Panel was only concerned that ([26]): - the evidence was relevant;
- an injustice was suffered by the appellant;
- the injustice was significant; and
- the injustice resulted from the respondent’s conduct.
(vii) In this case, the injustice suffered was that the appellant was deprived of the opportunity to address the relevant evidence, to cross examine the respondent’s witnesses about it, and to make submissions about it ([26]). The special circumstances arose not only because the appeal was successful, but because of the injustice that was required to be addressed on appeal ([26]).
(viii) The principle for which this decision provides new authority is well encapsulated in the Appeal Panel’s ‘final comment’ (at [28]):
‘Failure to produce documents required by law to be lodged with the Tribunal must surely be conduct of the respondent that is “out of the ordinary” […] Issues cannot properly be ventilated unless the Tribunal is provided with material which the respondent is obliged to produce under s 58 of the ADR Act […] As the Appeal Panel made clear in its decision of 15 August 2019 […], the Tribunal must be given assistance by respondents, including through diligent and honest compliance with the obligations under s 58 of the ADR Act.’
|
|
|
| | | Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220
Consumer and Commercial Division - Home Building
Decision of: Dr R Dubler SC, Senior Member; D Charles, Senior MemberCatchwords: HOME BUILDING – rectification and completion costs – damages for late completion DISCRETION – order making power under s 48O of Home Building Act – application of preferred outcome principle |
| DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; G Sarginson, Senior MemberCatchwords: APPEALS – Building and Construction – Contract – Repudiation – Adequacy of findings |
| Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222
Occupational Division
Decision of: M Harrowell, Principal Member; M Anderson, Senior MemberCatchwords: COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances – no reason to depart from usual position that each party pays their own costs |
| Noureddine v Barbalace Construction Pty Ltd [2019] NSWCATAP 223
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; A Boxall, Senior MemberCatchwords: APPEAL – Costs – Successful party – Exercise of discretion |
| Skiba v Serendipity (WA) Pty Ltd t/as Advanced Personal Management [2019] NSWCATAP 224
Consumer and Commercial Division - General
Decision of: S Higgins, Senior Member; P H Molony, Senior MemberCatchwords: CONSUMER CLAIM – whether services provided by the respondent fell within s 79F(1) of the Fair Trading Act 1987 (NSW) – whether the services were provided, granted of conferred in trade or commerce CONSUMER CLAIM – whether remedy sought fell within the terms of s 79E of the Fair Trading Act 1987 (NSW) |
| Bearup v Challenor Marine Services Pty Ltd [2019] NSWCATAP 225
Consumer and Commercial Division - General
Decision of: G K Burton SC, Senior Member; A R Boxall, Senior MemberCatchwords: CONSUMER CLAIM – supply of marine engineering repair services – scope of contract works – duty to warn beyond scope of works – consumer guarantees |
| Amos v PPT Investments Pty Ltd [2019] NSWCATAP 226
Consumer and Commercial Division - Motor Vehicle
Decision of: A P Coleman SC, Senior Member; K Ransome, Senior MemberCatchwords: APPEAL – whether Tribunal wrongly refused adjournment – whether appellant denied procedural fairness |
| Pollack v The Owners – Strata Plan No. 2834; The Owners – Strata Plan No. 2834 v Pollack [2019] NSWCATAP 227
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; M Anderson, Senior MemberCatchwords: By-law – construction of by-law – consent to amend by-law – damages |
| Saroya v Narayan [2019] NSWCATAP 228
Consumer and Commercial Division - Commercial
Decision of: P Durack SC, Senior Member; D Goldstein, Senior MemberCatchwords: AGRICULTURAL TENANCY – formal agreement unspecific as to area leased – error of fact – unjust to allow decision to stand |
| Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 [2019] NSWCATAP 229
Consumer and Commercial Division - Home Building
Decision of: Armstrong J, President; L Pearson, Principal MemberCatchwords: HOME BUILDING – Time to commence proceedings – consideration of interim and final occupation certificates – collateral review |
| Clarke v Bowen (No 2) [2019] NSWCATAP 230
Consumer and Commercial Division - General
Decision of: Armstrong J, President; T Simon, Senior MemberCatchwords: COSTS – appeal dismissed – whether special circumstances exist for an award of costs |
| SHH Ltd v City of Parramatta Council; SHH Ltd v City of Parramatta Council (No 2) [2019] NSWCATAP 231
Consumer and Commercial Division - General
Decision of: Cowdroy AO QC ADCJ, Principal Member; D A C Robertson, Senior MemberCatchwords: APPEAL – costs – claim by successful respondent for costs and indemnity costs – whether a claim for determination of a sub-licence constitutes a claim in excess of $30,000 – whether special circumstances exist – no new material offered on appeal – claim for indemnity costs following rejection of reasonable offer of settlement – whether indemnity costs should be awarded |
| Asia Invest Enterprises Pty Ltd v Bircan (No 2) [2019] NSWCATAP 232
Consumer and Commercial Division - General
Decision of: L Pearson, Principal Member; S Frost, Senior MemberCatchwords: COSTS – Appeal out of time from Consumer and Commercial Division – Extension of time refused – Appeal dismissed |
| Clayton v The Salvation Army (New South Wales) Property Trust T/as Aged Care Plus [2019] NSWCATAP 233
Consumer and Commercial Division - Retirement Villages
Decision of: D Charles, Senior Member; R Perrignon, Senior MemberCatchwords: APPEAL – Retirement Village – alternative road access to Village via a boom gate – whether service or facility in Village reduced or withdrawn by operator – failure to take into account access to visitors and service vehicles such as ambulances |
| Wallace v New South Wales Land and Housing Corporation [2019] NSWCATAP 234
Consumer and Commercial Division - Social Housing
Decision of: S Westgarth, Deputy President; M Harrowell, Deputy PresidentCatchwords: LANDLORD AND TENANT – Sections 154E and 154F of the Residential Tenancies Act, 2010 – neighbourhood impact statements – content and validity |
| | Kwok v NSW Land and Housing Corporation [2019] NSWCATAP 236
Consumer and Commercial Division - Social Housing
Decision of: G Curtin SC, Senior Member; L Wilson, Senior MemberCatchwords: LANDLORD AND TENANT – appointment of financial manager – powers of financial manager – termination of lease – execution of documents – occupant of premises – order for possession |
| Elias v McGauley [2019] NSWCATAP 237
Consumer and Commercial Division - Home Building
Decision of: P Durack SC, Senior Member; G Sarginson, Senior MemberCatchwords: APPEALS – Civil procedure – Extension of time for appeal – Service of documents on corporation – procedural fairness
APPEALS – Building and Construction – Rectification of defective building work – Damages – Sale of property without rectification – Effect on assessment of damages |
| Ashton v Stevenson; Stevenson v Ashton (No 2) [2019] NSWCATAP 238
Consumer and Commercial Division - Home Building
Decision of: I Bailey AM SC, Senior Member; L Wilson, Senior MemberCatchwords: Costs – Usual order for costs – Indemnity costs |
| Nguyen v Cisera [2019] NSWCATAP 239
Consumer and Commercial Division - Tenancy
Decision of: S Thode, Senior Member; J Kearney, Senior MemberCatchwords: RESIDENTIAL TENANCY – extension of time to file appeal |
| Vella v Mir (No 2) [2019] NSWCATAP 240
Consumer and Commercial Division - Home Building
Decision of: K Rosser, Principal Member; J Kearney, Senior MemberCatchwords: APPEAL – Home Building – Definition of major defect – s 18F defence – Method of rectification of defect |
| Nelson v Auberson [2019] NSWCATAP 241
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior MemberCatchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – consent orders – where based on contract between the parties – misleading statements – duress – authority to make orders |
| Dubow v Mid-Western Regional Council [2019] NSWCATAP 242
Administrative and Equal Opportunity Division
Decision of: Hennessey ADCJ, Deputy President; Dr J Lucy, Senior MemberCatchwords: APPEAL – appeal from decision that Tribunal has no jurisdiction to review four decisions made by the Mid-Western Regional Council to impound alpacas under s 116(3) of the Local Land Services Act 2013 (NSW) – whether Tribunal made an error of law in construing s 116(3) of the Local Land Services Act 2013 (NSW) or s 38 of the Impounding Act 1993 (NSW) |
| Akhtar v Chowdhury [2019] NSWCATAP 243
Consumer and Commercial Division - Tenancy
Decision of: K Rosser, Principal Member; J Wakefield, Senior MemberCatchwords: APPEAL – internal appeal - jurisdiction of Tribunal – liability of tenant to pay compensation for damage exceeding fair wear and tear on vacation of premises – error of law – whether findings made in the absence of evidence – whether wrong test applied on liability – whether failure to give adequate reasons – whether to deal with the internal appeal by way of new hearing pursuant to s 80(3) of the Civil & Administrative Tribunal Act – whether to substitute decision of Appeal Panel pursuant to s 81(1)(d) of the Civil & Administrative Tribunal Act – no error of law established |
| Lam v Dirani [2019] NSWCATAP 244
Consumer and Commercial Division - Tenancy
Decision of: G Curtin SC, Senior Member; G Sarginson, Senior MemberCatchwords: LANDLORD AND TENANT – residential tenancies legislation – obligations – leaving the premises in the same condition, fair wear and tear excepted, as when the agreement was entered into – no question of principle |
| Kakakios v D & S Radosh Pty Ltd [2019] NSWCATAP 245
Consumer and Commercial Division - General
Decision of: G Curtin SC, Senior Member; L Wilson, Senior MemberCatchwords: CONSUMER LAW – inconsistent findings – appropriate relief – joinder of a party – substantial merits of the case |
| RSK Construction Pty Ltd v Caruana [2019] NSWCATAP 246
Consumer and Commercial Division - Home Building
Decision of: T Simon, Senior Member; J Kearney, Senior MemberCatchwords: APPEAL – procedural fairness, damages or rectification, leave to appeal, no issue of principle |
| Titus v Eddington [2019] NSWCATAP 247
Consumer and Commercial Division - Strata
Decision of: S Westgarth, Deputy President; J McAteer, Senior MemberCatchwords: Strata scheme – reallocation of unit entitlements – expert evidence – evaluation of evidence |
| ZLU v ZLV [2019] NSWCAPAP 248
Guardianship Division
Decision of: Armstrong J, President; M D Schyvens, Deputy President; L Porter, General MemberCatchwords: APPEAL – Guardianship Division – internal appeal –financial management order – questions of law – whether there was “no evidence” to support a finding – where Tribunal found there was a “sensible and unacceptable risk” of exploitation – whether the Tribunal took the views of the subject person into account – weighing of s 4 considerations – subject person’s views considered – appeal dismissed |
| Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249
Occupational Division
Decision of: Armstrong J, President; L Pearson, Principal MemberCatchwords: COSTS – costs of the appeal – whether special circumstances – failure by respondent to provide relevant documents to tribunal at first instance – injustice caused to the appellant |
|
|
| | 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.
|
| |
