NCAT Legal Bulletin Issue 1 of 2026 | The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the High Court of Australia, Court of Appeal of New South Wales and the Supreme Court of New South Wales published in December 2025 and January and February 2026. | Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd (in [2025] HCA 50): The High Court unanimously allowed an appeal from the Full Court of the Federal Court finding that the defendant’s conduct was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the Australian Consumer Law. The Court held that the primary judge’s inferences about the states of mind of the defendant’s founder and Executive Chairman and its Head of Brand and Media, could and did provide cogent evidence relevant to the objective question of contravention of s 18(1) of the ACL.
| Cullen v President of the Legislative Council of New South Wales (in [2025] NSWCA 278): The Court held that ss 7-9 of the Parliamentary Evidence Act 1901 (NSW) substantially impaired the institutional integrity of the Supreme Court, contrary to the limitation on State legislative power recognised by the High Court in Kable, and were invalid.
| | CN1 Pty Ltd v NSW Self Insurance Corporation (in [2025] NSWSC 1464): The Supreme Court held that an Appeal Panel erred (in part) in its assessment of whether, for the purposes of s 3A of the Home Building Act 1989 (NSW) (HBA), the plaintiff (CN1 Pty Ltd) was a “developer” under the insurance policies (the Policy) issued by the defendant (NSW Self Insurance Corporation).
| Champion Homes Sales Pty Ltd v Voulgaris (in [2025] NSWSC 1488): The builder validly terminated a contract but made an application to NCAT to recover 15% of the contract price. The Supreme Court dismissed the appeal, agreeing that because the builder did not obtain the relevant insurance he could not make a claim for the contract price.
| International Minerals Group Pty Ltd v Amir Elleissy (in [2025] NSWSC 1513): NCAT ordered the plaintiff company to vacate premises for non-payment of rent, yet the plaintiff claimed the rent was abated due to repair issues. The plaintiff sought a stay of NCAT’s orders pending a final hearing in its internal NCAT appeal under s 69 of the Supreme Court Act 1970, but the stay request was denied.
| | The Owners – Strata Plan No 47035 v Athens (in [2025] NSWSC 1588): The Owners Corporation claimed outstanding levies owed by a unit owner, but the owner filed a cross-claim regarding water penetration issues at a value that “well exceeded” the plaintiff’s claim ($2 million). The Supreme Court transferred the matter to NCAT to either be assigned afresh or joined to any existing proceeding.
| DeMarco v Macey (in [2026] NSWSC 57): The plaintiff sought leave to appeal from a decision of an NCAT Appeal Panel based on alleged errors in considering the plaintiff’s quantum meruit claims, its calculation of damages owed by the plaintiff, and its costs order which was awarded in favour of the defendants. The Supreme Court refused leave to appeal on all grounds.
| Bazdaric Homes Pty Ltd v Yeh (in [2026] NSWSC 114): The builder sought payment of unpaid invoices and interest pursuant to the parties’ building contract, and the owners sought damages for breach of contract and breach of statutory warranties. In seeking appeal to the Supreme Court, he alleged that the Appeal Panel exceeded jurisdiction, denied the builder procedural fairness, and misconstrued the Contract. Leave to appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) was refused and all three grounds of appeal were rejected.
| | | Bed Bath ‘N’ Table Pty Ltd v Global Retail Brands Australia Pty Ltd [2025] HCA 50 10 December 2025 - Gageler CJ, Gordon, Edelman, Jagot, Beech-Jones JJ
In sum: The High Court unanimously allowed an appeal from the Full Court of the Federal Court regarding the use of a trade mark in circumstances alleged to have constituted conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the Australian Consumer Law (“ACL”). The Court held that the Full Court’s observation that "proof of a subjective intention to mislead ... may be some evidence that in a border line case the respondents' conduct is likely to mislead or deceive”, was too narrow in multiple respects. It therefore concluded that the primary judge’s inferences about the states of mind of the defendant’s founder and Executive Chairman and its Head of Brand and Media, could and did provide cogent evidence relevant to the objective question of contravention of s 18(1) of the ACL. As such, the primary judge's findings were sufficient to establish that the defendant had engaged in misleading or deceptive conduct or conduct likely to mislead or deceive in contravention of s 18(1). Accordingly, there was no scope for interference with the primary judge's orders and the Court allowed the appeal.
Catchwords: Trade practices – Misleading or deceptive conduct – Where "House Bed & Bath" trade mark used as name of new soft homewares stores – Where network of stores throughout Australia sold soft homewares under trade marks including "BED BATH 'N' TABLE" since 1976 – Whether use of "House Bed & Bath" trade mark misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of Australian Consumer Law – Whether trader's wilful blindness to possibility of confusion relevant to objective question of misleading or deceptive conduct – Whether primary judge's conclusion involved material error.
Words and phrases – "appellate review", "conduct", "confusion", "context", "deceptive similarity", "deceptively similar", "distinctiveness", "evidentiary approach", "immediate and broader context", "inference", "likely to mislead or deceive", "misleading or deceptive", "objective assessment of fact", "reputation", "state of mind", "trade mark", "trade or commerce", "trader", "wilful blindness".
Competition and Consumer Act 2010 (Cth), Sch 2, s 18(1). Trade Marks Act 1995 (Cth), s 120(1).
Held (the Court unanimously allowing the appeal):
(i) The primary judge's findings were sufficient to establish that the defendant had engaged in misleading or deceptive conduct or conduct likely to mislead or deceive in contravention of s 18(1) of the ACL.
(ii) Link to the High Court’s case summary is here. | | Court of Appeal of New South Wales | Cullen v President of the Legislative Council of New South Wales [2025] NSWCA 278 23 December 2025 - Bell CJ; Leeming JA; Free JA
In sum: Section 5-9 of the Parliamentary Evidence Act 1901 (NSW) (the Act) established a regime requiring witnesses to appear and give evidence before a House of the New South Wales Parliament or a parliamentary committee. Under the legislation, a person may be summoned to give evidence before the Legislative Council or Legislative Assembly and if the witness fails to attend and give evidence as directed, the President or Speaker of the respective bodies could certify as such to a judge of the Supreme Court who “shall” then issue a warrant to bring the witness before the relevant House or committee. The Act also permitted the witness’ continued custody. Mr Cullen was served with a summons and commenced proceedings seeking a declaration of invalidity on the basis that ss 7-9 of the Act offend the implied limitation on State legislative power, recognised in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable), concerning the institutional integrity of Chapter III courts. The Court held that ss 7-9 of the Act substantially impair the institutional integrity of the Supreme Court, contrary to the limitation on State legislative power recognised by the High Court in Kable, and are invalid.
Catchwords: CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid
Held (declaring that ss 7, 8 and 9 of the Parliamentary Evidence Act 1901 (NSW) are invalid):
(i) The Court held that the lending of the Court’s authority to what in substance are decisions of the President or Speaker is antithetical to the Supreme Court’s essential attributes of impartiality and independence. Sections 7-9 of the Act therefore substantially impair the institutional integrity of the Supreme Court, contrary to limitation on State legislative power recognised by the High Court in Kable, and are invalid.
(ii) Link to the Court of Appeal’s case summary is here. | Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20 5 March 2026 - Leeming JA, Stern JA, Griffiths AJA
In sum: This case related to a 13 day criminal prosecution for historic sexual offending in the District Court which was constituted by a judge sitting without a jury. In that time, the judge made a submission to a Committee of the Legislative Council of New South Wales criticising the Director of Public Prosecutions (NSW). The Director subsequently applied for the Judge to disqualify herself on the ground of apprehended bias, based on whether, in light of her Honour’s submission and its reporting in the media, a fair-minded observer might reasonably apprehend that her Honour might not bring an impartial and unprejudiced mind to the prosecution. The issue then arose as to whether the tender of the Judge’s submission in support of the Director’s recusal application would infringe Article 9 of the Bill of Rights, which protects freedom of speech in Parliament, because the Judge’s submission was made to Parliament. The Court of Appeal concluded that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making a recusal application on the ground of apprehended bias by reference to the Judge’s submission to Parliament. The Court granted limited declaratory relief to resolve this issue, recognising that it would decide no more than it needed to.
Catchwords: CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued
Held (declaring that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias):
(i) The Court declared that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias by reference to the Judge’s Submission dated 28 November 2025 and in accordance with the written submissions filed by the Director on 9 December 2025.
(ii) Link to the Court of Appeal’s case summary is here. | | Supreme Court of New South Wales | CN1 Pty Ltd v NSW Self Insurance Corporation [2025] NSWSC 1464 5 December 2025 - Kirk J
In sum: The Court held that an Appeal Panel of NCAT erred (in part) in its assessment of whether, for the purposes of s 3A of the Home Building Act 1989 (NSW) (HBA), the plaintiff (CN1 Pty Ltd) was a “developer” under the insurance policies (the Policy) issued by the defendant (NSW Self Insurance Corporation). The Panel erroneously construed “residential development” as a process or objective rather than a place, which led to the erroneous conclusion that the relevant subdivision was one development.
Facts: The plaintiff (CN1 Pty Ltd) claimed to have the benefit of insurance policies (the Policy) issued by the defendant (NSW Self Insurance Corporation) in relation to building works. The builder contracted for the works became insolvent and left the works “incomplete and defective”. The plaintiff sought indemnity under the Policy. However, cl 3.4(a) of the Policy stated that it did not apply to anyone who was “in relation to the work… a developer” where “developer” was defined as per the Home Building Act 1989 (NSW) (HBA). The defendant refused the claim for indemnity on the basis that the plaintiff was a developer in relation to this work. The plaintiff filed in NCAT claiming indemnity from the defendant, and NCAT allowed this application. The defendant appealed this decision, and an Appeal Panel allowed the appeal.
The plaintiff subsequently filed summons in the Supreme Court of NSW seeking leave to appeal from the Appeal Panel’s decision or, in the alternative, judicial review of the decision. The Court granted leave to appeal on questions of law.
The Panel found that NCAT erred in its construction of s 3A HBA when it determined that there was no “statutory support” for limiting the scope of “residential development” to “development for residential purposes that occurs only on a single parcel of land”. The Panel also considered that the plaintiff was a “developer” because it owned 4 or more of the proposed dwellings in the development.
Held (upheld the appeal in part):
(i) Firstly, the plaintiff argued that lots which were “not contiguous could not together form one residential development”. The Court accepted that this is a relevant consideration but noted that it is “not of itself necessarily conclusive”. Upon “practical, factorial analysis” the Court held that “land” under s 3A(1A) HBA can refer to more than one lot and does not itself require all lots to be contiguous. Thus, the Appeal Panel did not err in this way.
(ii) Secondly, the Court found that the Appeal Panel did not incorrectly construe s 3.4(1) of the Policy by characterising the plaintiff as a developer in the abstract, as it simply considered “developer” for the purposes of s 3A. Additionally, though not fatal to its overall contention, the Court (contrary to the plaintiff’s claim) determined that the time at which someone is characterised as a “developer” is when the building work is done.
(iii) However, the Court concluded that the Panel’s construction of “residential development” was erroneous in that it construed it as a “process or objective” rather than as a place, which led it to (incorrectly) characterise the whole of the subdivision as one residential development. This error was material because there was a realistic possibility that the error could have made a difference.
(iv) Thirdly, the plaintiff claimed that cl 3.4(a) was an “exception” to coverage so therefore the defendant bore the onus of proving the plaintiff was a developer. The Court found that the Panel made no error in not addressing the question of where the burden of proof lay because it did not need to do so when construing the meaning of “residential development” and “developer”.
(v) Fourthly, the Court deemed it “unnecessary to answer” the question of whether the Panel engaged in irrational and illogical fact-finding because the problem was actually that it misdirected itself on the issue of what a “residential development” means.
(vi) The orders were set aside and remitted to the Appeal Panel for determination according to law. | Champion Homes Sales Pty Ltd v Voulgaris [2025] NSWSC 1488 12 December 2025 - Walton J
In sum: The owner (Evonne Voulgaris) and the builder (Champion Homes Sales Pty Ltd) were parties to a contract for the construction of a new dwelling (and the destruction of the original dwelling). The builder later terminated the contract because on the basis that the owner was in breach by not providing evidence of her ability to pay for the building works. The builder made an application to NCAT to recover 15% of the contract price, but this claim was dismissed because the builder had not obtained the relevant insurance. NCAT, and later the Appeal Panel, concluded that obtaining insurance and issuing a certificate to that effect, was a condition precedent to making a claim under the contract. The Supreme Court dismissed the appeal.
Facts: The first instance NCAT proceedings concerned an application brought by the builder against Evonne Voulgaris (the owner), for damages claimed under a building contract for the construction of a new two-storey residential dwelling. NCAT concluded (and the Appeal Panel confirmed) that s 92(2) of the Home Building Act 1989 (NSW) (HBA) precluded the builder’s claim.
The original contract price was $530,000 with a $15,000 tender fee which had previously been paid to the owner in May 2022. The builder commenced work on obtaining development approval in or around June 2022, and in November 2022 Bayside Council issued development consent to the builder for demolition of the existing structure and construction of a two-storey dwelling. However, in May 2023 the builder issued the owner a “Notice of Breach” regarding the owner’s alleged failure to provide evidence of her ability to pay for the cost of the building works. Following correspondence regarding such a breach, the builder terminated the contract in July 2023 and subsequently sought payment of 15% of the contract price. The owner did not pay this amount and so in August 2023 the builder lodged an application in NCAT to recover the monies.
The primary issue on appeal to the Supreme Court was the construction of ss 10, 92, 94 of the HBA and more specifically, the definition of “residential building work” under cl 2 of Sch 1 to the HBA. The builder sought to challenge the Appeal Panel’s definition which was expansive and included “preparatory work”. The contract contains a “narrative” that a builder cannot “demand or receive any of the contract price until warranty insurance is in force and the owner is provided with a certificate of insurance”. These entries were also preceded by the word “Note”, found immediately below the builder’s signature. The builder contended that these terms therefore did not form part of the contract.
The Appeal Panel confirmed that the contract mentioned, at several points, that none of the contract could be claimed by the builder without the builder having obtained home warranty insurance, and providing a certificate to this effect to the owner. In not doing this, the builder could not claim the contract price. The Panel also upheld NCAT’s interpretation of ss 92 and 94 of the HBA, rejecting the builder’s submission that no “residential building work” had occurred because the builder had only done preparatory work, with no physical construction undertaken on the site. The Panel noted that there was a “more proximate and closer link between the work of a preparatory nature and the construction of the owner’s dwelling” in this case (works for DA compliance such as drainage) than in Syed. The builder appealed the decision on 8 grounds.
Held (refusing leave to appeal on Ground 5 and dismissing all other grounds):
(i) The Court first assessed ground 5 which concerned the construction of the contract (a question of law). The Court read cl 38.2 as expressing “the clearest intention, entirely consistent with the Notations, that the builder was not to commence the work he did undertake at the site… without the requisite insurance”. This provision “gain[ed] even greater significance” when read with cl 3.1 which refers to an “obligation to pay other money that becomes payable under this contract”. It must, the Court found, be at least implicit that the owner would not be required to pay for work which is prohibited by the contract.
(ii) The Court then considered the builder’s claim that the Notations in the contract did not form part of the contract. The Court noted that these Notations are in the body of the contract, have the same style and form as other contractual terms, and are clear and direct in what they address. Additionally, “there are no obvious alternatives to which the expression “general notes” in cl 1.2 may apply” except for these Notations. Considering Sch 6 as a whole, its provisions would effectively have “no content” if the builder’s construction was accepted. Finally, the Court recognised that the conclusion that the Notations are part of the contract, is consistent with the NSW Government’s guidance on what is to be included in a compliant home building contract.
(iii) The definition of “residential building work” found in the HBA did not need to be implied for the reasonable and effective operation of the contract.
(iv) On Ground 4, the Court held that the only connection between the parties is the contract and the builder was not entitled to any payment from the owner except for the contract price. As such, any damages claim had to be part of the contract price which was also evident by the builder’s acceptance that the $15,000 tender fee be credited to the contract price.
(v) The Court concluded that, because each of the other grounds all had a common basis (that the Appeal Panel had misconstrued the definition of “residential building work”), none of them could “survive” and “accordingly must fail”. | International Minerals Group Pty Ltd v Amir Elleissy [2025] NSWSC 1513 15 December 2025 - Slattery J
In sum: The plaintiff company (a tenant, International Minerals Group Pty Ltd) was ordered by NCAT to vacate certain premises for non-payment of rent to the landlord (Mr Eleissy). The plaintiff claimed that the rent was abated because of repair issues. NCAT rejected the plaintiff’s claim. Subsequently, the plaintiff sought relief by way of requesting an interlocutory injunction from the Supreme Court of NSW under s 69 of the Supreme Court Act 1970. Specifically, it sought a stay of NCAT’s orders pending a final hearing in the appeal division of NCAT. The plaintiff’s request was denied.
Facts: The plaintiff company is the lessee under a residential tenancy agreement with two of its directors having occupied the apartment since 2018 (at an initial weekly rent of $2,600). In October 2025, NCAT made orders in favour of the landlord, terminating the tenancy agreement immediately and giving him vacant possession due to the tenant’s frequent failure to pay rent. NCAT at first instance concluded that the tenant was in rental arrears in the sum of $109,658.58. NCAT rejected the tenant’s argument that the landlord’s failure to repair part of the balcony relieved the tenant wholly or partially of its obligation to pay rent.
The tenant sought unsuccessfully to stay that decision in NCAT’s internal appeal jurisdiction and subsequently commenced the Supreme Court proceedings by summons in November 2025, for prerogative review under s 69 of the Supreme Court Act 1970. In doing so, the tenant sought interim relief to have the NCAT at first instance decision stayed under 21 January 2026 when the substantive appeal will be heard by an NCAT Appeal Panel. A “substantial ground” for the stay application is one of the tenants’ ill health.
Held (declining to grant the plaintiff an interlocutory injunction):
(i) In seeking an interlocutory intervention of the court of Equity, the tenant must also “do equity as well”.
(ii) The Court noted that the tenant is unlikely to succeed “in everything for which it contends” and that its offer of $30,000 to support its undertaking as to damages was “grossly inadequate” and “well short of… a fair payment in the circumstances”.
(iii) Additionally, the Court held that the tenant’s submissions established some level of “cognitive dissonance”. Importantly, the tenant (or its directors or another related entity) recently acquired other residential real property for over $5 million. The Court noted that such resources “could probably be deployed to pay an appropriate sum into Court” and because no “fair and proper sum” was offered, the Court declined to grant the interlocutory injunction.
(iv) The Court recounted Hmelnitsky J’s unpublished reasons to show that “little has changed and the Court now considers much the same discretionary considerations as were presented to his Honour”. | Dwyer Building Group Pty Ltd v Spicer [2025] NSWSC 1508 16 December 2025 - Griffiths AJ
In sum: The parties entered into a building contract for the renovation of a residential dwelling. The parties fell into dispute which was initially resolved by a Work Order but renewal proceedings took place to resolve a further dispute regarding this Work Order, previously made by NCAT’s Consumer and Commercial Division (CCD) under sch 4, cl 8 of the Civil and Administrative Tribunal Act 2013 (NSW). The key issue on appeal was whether the Appeal Panel constructively failed to exercise jurisdiction by failing to explicitly assess one extension of time request by the builder, which would have affected its compliance with the Work Order subject to the dispute. The Supreme Court refused leave to appeal and dismissed the summons.
Facts: Applicant sought leave to appeal from an NCAT Appeal Panel decision dated 13 June 2025. The proceedings have a long history, starting in 2020 when the respondent (the owner) commenced home building proceedings in NCAT, which resulted in an agreed Work Order between the parties. It required the applicant (the builder) to complete works under a contract within a reasonable time. After commencing the works, relations between the parties “significantly deteriorated” and the builder ceased works in December 2021.
In January 2022 the owner commenced proceedings in the CCD to enforce the Work Order. Whether the builder was in breach of the Work Order depended on whether the builder was entitled to extensions of time under the contract. NCAT ordered the builder to pay the owner $251,187.45. The builder appealed this decision on 12 grounds, and the owner filed a cross-appeal. An Appeal Panel allowed the appeal and cross-appeal. The Appeal Panel found that the Tribunal had erred by wholly failing to determine the builder’s entitlement to extensions of time under the contract at all, and as a result, the builder’s time for completing the Work Order should be extended by 20 business days. The Panel therefore ordered the builder to pay the owner $286,550.87. The builder raised 5 grounds of appeal in relation to the Appeal Panel’s decision, all allegedly on questions of law.
The focus of the appeal to the Supreme Court was extension of time #5 which the builder described as concerning an instruction given by the owner for the builder to stop work until further notice, while the owner addressed damage to the mudroom flooring. The builder noted that the owner never provided notice instructing the builder to recommence work. Relying on clause 11 of the contract, the builder argued that it was entitled to a “fair and reasonable” extension of time, which is based on the circumstances surrounding the subject delay.
Held (refusing leave to appeal and dismissing the summons):
(i) In the first instance proceedings, NCAT concluded that it did not need to determine any of the extensions of time because there were provisions in the contract relating to these which could not be imputed in the Work Order. The Panel, however, found that it erred in not determining whether the builder had such entitlements, and that this was a necessary consideration when determining what a “reasonable time” was under the Work Order.
(ii) The Court was not satisfied that Ground 1 raised a “an issue of principle, a question of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable.” The builder’s “strong interest” in having the Panel’s decision fell “far short” of demonstrating public importance.
(iii) The Court concluded that the builder’s claim was “flawed” because it did not take into account the way the case was conducted before the Appeal Panel. More specifically, extension of time #5 “attracted little if any real attention by the parties” and it was “well open” to the Panel to address the matter on a “global” rather than individual basis. As such, the Panel’s failure to make “specific, explicit” findings in regard to this matter was “not inconsistent with the parties’ approach” meaning there was no constructive failure to exercise jurisdiction.
(iv) Additionally, the Court recognised that there was “an air of artificiality around Ground 1. More specifically, the builder’s attempt to “elevate the significance of EOT #5 notwithstanding its substantially muted treatments in both parties’ argument and in the reasons of the Appeal Panel.”
(v) The Court also found that utility was relevant to its decision to refuse to grant leave. Counsel for the builder confirmed before the Court that the builder now placed no reliance on a clause of the contract which provided for “latent condition affecting the site”. The was therefore no utility in the appeal given the only basis for supporting extension of time #5 was abandoned. The builder also tried to claim an additional seven business days and so if the appeal was remitted to the Panel, an extension of several weeks would have to be granted to avoid breach of the Work Order. Such uncertainty further casted doubt on the utility in granting leave.
(vi) Grounds 2-5 did not “relate to any question of law” and were “properly characterised as raising questions of fact”. For example, Grounds 2, 3, and 4 relayed to the delays in the owner’s AC [air conditioning] Works which was already dealt with by the Appeal Panel.
(vii) Citing Stern JA in Hawach at [75], the Court emphasised that “the plaintiffs’ invocation of descriptions such as a constructive failure to exercise jurisdiction or unreasonableness does not suffice to constitute a question of law for the purposes of s 83 of the CAT Act.” | The Owners – Strata Plan No 47035 v Athens [2025] NSWSC 1588 19 December 2025 - Elkaim AJ
In sum: The plaintiff is an Owners Corporation (OC) in a strata scheme, and the defendant is an owner of a unit in the building. The plaintiff claimed outstanding levies owed by the defendant, but the defendant filed a cross-claim regarding the water penetration issues at a value that “well exceeded” the plaintiff’s claim ($2 million). The Supreme Court transferred the matter to NCAT to either be assigned afresh or joined to any existing proceeding.
Facts: The plaintiff sued the defendant for unpaid levies which are now valued at $123,293.99. However, the defendant made a cross-claim which had a value exceeding the plaintiff’s claim. The cross-claim concerned “long standing water penetration since 2011” which affected the common property and the defendant’s unit. As such, the defendant claimed that the plaintiff was in breach of its statutory obligation to main and repair the common property and has been negligent and guilty of nuisance. Such failings have allegedly resulted in $2 million of damages to the defendant.
The plaintiff’s claim was originally commenced in the Local Court in December 2019, with a defence filed in January 2020. The matter was transferred to the Supreme Court in June 2020 because the cross-claim far exceeded the jurisdiction of the Local and District Courts. However, proceedings were also commenced in NCAT in April 2020.
Held (transferring proceeds to NCAT):
(i) The Court put the parties on notice of a potential jurisdictional issue, and both parties concluded that the Supreme Court did not have jurisdiction to hear the matter. The Court considered cl 5 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which led it to enquire whether or not NCAT would have the jurisdiction to deal with the cross-claim (which included negligence and nuisance causes of action and the extent of damages claimed). The Court accepted that the NSW Court of Appeal judgments in Vickery v The Owners – Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284, suggest that s 232 of the Strata Schemes Management Act 2015 includes NCAT’s capacity to hear and determine the damages claim.
(ii) The Court did not think that an estoppel arose because while the defendant’s legal representative should have considered the jurisdiction problem, it could not be said that “they acted unreasonably in raising the cross-claim in defence to the already existing plaintiff’s claim”. As such the defendant ought not to have been estopped from transferring the cross-claim to NCAT.
(iii) Additionally, even if only partly successful, the cross-claim could exceed, and effectively extinguish, the plaintiff’s levies claim. | DeMarco v Macey [2026] NSWSC 57 12 February 2026 - Price AJA
In sum: The plaintiff (DeMarco, a builder) and the defendants (property owners) were parties to a contract for residential building works on the owners’ property. An original sum was agreed to but the defendants terminated the agreement following delays caused by the builder. The plaintiff sought leave to appeal based on an Appeal Panel’s apparent errors in considering the plaintiff’s quantum meruit claims, its calculation of damages owed by the plaintiff, and its costs order which was awarded in favour of the defendants. The Court refused leave to appeal on all grounds.
Facts: In 2016 the plaintiff (a builder) and the defendants (property owners) entered into a written contract to perform residential building works (the DeMarco Contract). The parties agreed to a lump sum of $770,000, subject to adjustments. The defendants paid the plaintiff $714,674 in October 2016 but in February 2019, the defendants terminated the DeMarco Contract. This was due to the plaintiff’s delay in completing the works. It is not disputed that the plaintiff was at fault for the delay nor that the defendants were entitled to terminate the DeMarco Contract.
In May 2019, the defendants entered into a new contract with David Swingler (the Swingler Contract) with Mr Swingler completing the works originally subject to the DeMarco Contract. He also completed some works beyond the scope of the DeMarco Contract, which were valued at $42,873. In February 2019, the defendants commenced proceedings in the Tribunal against the plaintiff, and NCAT awarded them damages in the sum of $317,919 for breach of contract. The plaintiff appealed NCAT’s decision, and an Appeal Panel dismissed the appeal but adjusted the amount awarded to $389.184. The plaintiff appealed this decision to the Supreme Court of NSW and in 2022, Harrison AsJ allowed the appeal on the grounds of apprehended bias, and so the matter was remitted to NCAT for redetermination. In the subsequent NCAT proceedings, the plaintiff made a quantum meruit claim of $34,675, but in August 2024, NCAT ordered the plaintiff to pay the defendants $416,508.40 plus the defendants’ costs. The plaintiff again appealed NCAT’s decision, and an Appeal Panel allowed the appeal in part and decreased the amount payable to the defendants to $372,579.42, with the plaintiff to pay 90% of defendants’ costs. The plaintiff subsequently sought leave to appeal this Panel’s decision in the Supreme Court.
Held (leave to appeal refused):
(i) On the first issue (grounds 1 to 3) regarding the quantum meruit claim, the plaintiff claimed that the Appeal Panel erred in not considering the balance of the claim i.e., only the $13,858 admitted by the defendants. The Court found that the Panel did have regard to the plaintiff’s evidence and submissions on the issue, and that Mr Macey’s admissions were “clear and unambiguous”. However, it concluded that the remainder of Mr Macey’s statements on other quantum meruit claims were “far from clear and unambiguous” and so the Panel was permitted to reject the plaintiff’s submissions that they were admissions. As such, there appeared to be “no reasonably clear injustice”, and the Panel’s assessment of the claims on the balance of probabilities raised only questions of fact.
(ii) The second issue (grounds 4 to 8) concerned the Appeal Panel’s findings in respect of “contract price” and the exclusion of “prime cost” and “provisional sums” from the plaintiff’s contract price. The plaintiff was therefore challenging the way damages were calculated rather than the Panel’s conclusion that cl 25 was not an “exclusive remedy” and that common law remedies may be available. The Court confirmed that the Panel was not obliged to accept an expert’s assessment as to the “reasonable cost” of making the works conform with the DeMarco Contract, and there was no evidence to suggest that any of Mr Swingler’s works were done “in an unreasonable fashion”. Additionally, the Court accepted the Panel’s calculations of the unpaid contract price (despite a minor typographical error) and the application of Bellgrove and Wabbits.
(iii) The third issue concerned costs. The Court found that the plaintiff failed to establish any House v The King error and therefore no leave to appeal could be granted on the basis of an error in making a 90% costs order in favour of the defendants. | Bazdaric Homes Pty Ltd v Yeh [2026] NSWSC 114 24 February 2026 - Stern J
In sum: Mr Bazdaric Homes Pty Ltd (the builder) and Mr and Mrs Yeh (the owners) were parties to a building contract (the Contract). The builder sought payment of unpaid invoices and interest, and the owners sought damages for breach of contract and breach of statutory warranties. In his appeal to the Supreme Court, the builder alleged that the Appeal Panel exceeded jurisdiction, denied the builder procedural fairness, and misconstrued the Contract. Leave to appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) was refused and all three grounds of appeal were rejected.
Facts: The primary issue before the Appeal Panel was whether the builder was liable to pay damages to the owners in respect of the actual cost or the reasonable cost. These costs were incurred by works installing a gravity-fed sewer connection linking the Premises to a Sydney Water mains connection (the Sewer Connection works). NCAT found that the builder was in breach of contract and in breach of statutory warranties because it did not take steps, prior to laying a concrete slab, to check whether the floor levels would allow a gravity-fed sewer to be connected. NCAT also concluded that the owners could not recover damages when it was the owners’ son who had paid for the works to be installed (which meant the owners suffered no loss). The owners appealed on this issue of loss under s 80 of the NCAT Act, and an Appeal Panel upheld the appeal in part, finding that the owners were entitled to compensation for reasonable not actual costs. The former was assessed at $41,757 and the latter at a little over $100,000.
In the appeal to the Supreme Court, the builder contended that the Appeal Panel’s decision should be set aside on three grounds: firstly, the Panel exceeded its jurisdiction in deciding that NCAT had erred in law on the issue of loss because this was neither a question of law nor did the Panel grant leave to appeal; secondly, the Panel denied the builder procedural fairness (or misapplied authorities) because it raised issues which not come up at first instance; and thirdly, the Panel misconstrued the Contract. The Court accepted that the builder dealt almost exclusively with the owners’ son, who had a power of attorney to act on behalf of his parents (and that this was the power with which he signed the contact on their behalf). The primary cause of the issues in dispute was the discovery (on 16 January 2022) that the Mains Connection could not be connected to the premises, which resulted in the owners’ son paying $100,399.99 to construct a new sewer connection.
Held (refusing the appeal):
(i) An extension of time was required with the appeal filed nearly six months after the Appeal Panel’s decision. While there was no evidence to explain the delay, the Summons contended that it was “reasonable and appropriate” to await the Panel’s costs decision before filing.
(ii) On the first ground, the builder claimed that there was no question of law on appeal but rather it was an attempt to reagitate the NCAT proceedings which considered that the party who incurred the cost was not a party to proceedings and did not receive the benefits of statutory warranties. The owners argued that the Tribunal erred in law by applying the wrong legal principle and failing to account for relevant considerations when finding that the owners’ son was entitled to be indemnified. The Court held that “whether a restitutionary obligation was owed on contested facts, in circumstances where the Tribunal made no finding as to whether monies were paid by Jeffrey [the owner’s son]…” for the works, is a question of law.
(iii) In considering the second ground, the Court explained that questions about whether payments by Jeffrey were made on behalf of the owners was relevant in the proceedings because it was relevant to whether the owners had suffered loss form the works. The Court held that there was no failure by the Appeal Panel to apply the principles in Suttor v Gundowda because the contention that the works were paid for by the owners’ son subject to an obligation of reimbursement was not a new point made on appeal. Therefore, there was no denial of procedural fairness.
(iv) The builder’s third ground of appeal was also rejected with the Court finding that the Panel had not misconstrued the Contract because the builder’s interpretation – that its obligations to check and verify dimensions only arose immediately prior to undertaking that stage of constriction – was “not the natural meaning of the Contract” and made “no commercial sense”. The Court emphasised that the provision’s “obvious commercial purpose” was to ensure that the plans could be implemented having regard to the level of the Mains Connection, and there is “no reason” why this would only be necessary immediately before the works are commenced. | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin 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. |
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