Subject: NCAT Legal Bulletin - Issue 3 of 2014

Issue 3 of 2014   August 2014
The NSW Civil and Administrative Tribunal (NCAT) Legal Bulletin is a regular publication highlighting relevant and interesting case law from across the various State jurisdictions, and other useful information and updates that are of significance to the Tribunal's work. This issue also includes a selection of recent NCAT Appeal Panel decisions.

In August 2014 NCAT commenced a 3-month pilot of online dispute resolution for small consumer claims. Online dispute resolution is an innovative and convenient method for parties to negotiate online without the need to attend NCAT in person. Learn more about the online dispute resolution pilot.

For more information about the Tribunal visit the NCAT website.
NSW Court of Appeal
AHB v NSW Trustee and Guardian [2014] NSWCA 40
5 March 2014 – Macfarlan, Gleeson and Leeming JJA

Summary: This decision concerns an application for adjournment based on the applicant being “quite ill with influenza” (at [4]). An email attaching a medical certificate was relied upon in this application which was dismissed on the grounds that there was inadequate material in support. The decision is useful at [4] where the nature of what will be considered adequate material is set out by the Court:

In his email he says that he is "quite ill with influenza" but the medical certificate is inadequate to establish his unfitness to attend the hearing today. It simply states that AHB "is receiving Medical Treatment and is unfit for work/school from 5/03/2014 to 6/03/2014 inclusive due to a medical condition". The Court will not ordinarily act on such a formulaic document and will require an explanation on oath from the medical practitioner of the illness and the reasons for the applicant's inability to attend Court.

While the NCAT legislation directs the Tribunal in dealing with such applications, these reasons for decision are useful in pointing out that medical evidence in support of an adjournment application must give reasons for the party’s inability to attend.

Link: Read the decision on the NSW Caselaw website.
Sahade v The Owners – SP 62022 [2014] NSWCA 208
1 July 2014 – McColl, Basten JJA and Sackville AJA

Summary: The CTTT, now the Consumer and Commercial Division of NCAT, has the power under the Strata Schemes Management Act 1996 (NSW), to reallocate unit entitlements where it is found that the original allocation is considered to be “unreasonable”. Section 183(3) requires the Tribunal to have regard to the “respective values” of the lots. The proceedings concern an appeal against a decision by the Tribunal to refuse to reallocate unit entitlements in favour of the appellant. At [24] the Court found that it would be inconsistent with the grant of the power and the test of “unreasonableness” if the respective value was the only determinant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 applied. The Court found that the issue of control (see [39]-[47] and [50]) was not an issue that could be ignored and by not providing reasons of why this was taken to be an irrelevant consideration the Tribunal did not fulfil its obligation to provide adequate reasons.

Link: Read the decision on the NSW Caselaw website.
NSW Supreme Court
Aboriginal Housing Company Ltd v Kaye-Engel (No 3) [2014] NSWSC 718
6 June 2014 – Davies J

Summary: The proceedings involve a claim by the plaintiff for possession and a cross-claim by the defendant for orders to remain in possession and in relation to rent and repair of the property. The defendant originally filed the proceedings to remain in possession of the property in the CTTT (now the Consumer and Commercial Division of NCAT) and the plaintiff filed other proceedings for possession also in the Tribunal. Later, the defendant filed fresh proceedings in the Supreme Court. An order was made by a member of the Tribunal transferring the proceedings to the Supreme Court to be heard together.

Davies J raised concerns about whether the Supreme Court had jurisdiction to hear the proceedings in light of Residential Tenancies Act 2010 (NSW), ss81 and 119. His Honour said at [19]:

It is apparent that the restrictive terms of the 1987 Act and the 2010 Act (which commenced on 31 January 2011) result, or may result, in the need for two separate proceedings to be brought to determine matters that are common to both. Section 81 of the 2010 Act (s 53 of the 1987 Act) sets out the only circumstances in which a residential tenancy agreement terminates. None of those circumstances allow for order of any court but only an order by the Tribunal.

Further:

[21] It is not clear to me, however, that the order made by the Tribunal member was an order made within the jurisdiction of the Tribunal because a transfer could only be made to a court having jurisdiction. Since the Supreme Court would not appear to have jurisdiction to terminate a residential tenancy by virtue of s 81 the precondition of a transfer under s 23 of the CTTT Act was not satisfied.

[…]

[23] The CTTT has now been replaced by the Civil and Administrative Tribunal Act 2013 (NSW). Section 16 gives jurisdiction to the new tribunal (NCAT) under the Australian Consumer Law (NSW) (Schedule 4 Part 3 of the CAT Act). The reference to the Australian Consumer Law (NSW) derives from s 28 Fair Trading Act 1987 (NSW). Section 21 of the ACL proscribes unconscionable conduct in the supply of goods and services.

[24] The Plaintiff submitted that NCAT has no jurisdiction to deal with the unconscionability claim. Hence, it was submitted, two proceedings are necessary. The proceeding that deals with the termination of the tenancy must be dealt with by NCAT. The proceeding dealing with unconscionability must be dealt with in this Court.

His Honour concluded that, at [29], “it would be in neither party’s interest for there to be two separate hearings, one in this Court and one in the Tribunal” therefore, at [30]:

The Defendant submitted that the appropriate course was for this Court to deal with all of the issues between the parties. This Court is not precluded from doing so. It simply does not have jurisdiction to terminate the residential tenancy. The Defendant submits without opposition from the Plaintiff that this Court should determine all of the issues between the parties. In relation to the tenancy this Court should make declarations either as to its continuance or as to its termination. The parties will then enter orders by consent in the Tribunal if necessary. I agree that this is the most sensible course to take with a view to minimising costs.

Link: Read the decision on the NSW Caselaw website.
NSW Civil and Administrative Tribunal (NCAT) Appeal Panel
Significant NCAT decisions are available on the NSW Caselaw website.
Di Salvo v Leung [2014] NSWCATAP 44
14 August 2014 – Wright J (President) and N Hennessy LCM (Deputy President)

Summary: Application for extension of time in which to lodge a notice of appeal under the Civil and Administrative Tribunal Act 2013 (NSW), s 41. There was also a question as to the granting of a stay of orders made for termination of a residential tenancy agreement and for possession. As the application for an extension of time was refused and the appeal dismissed, the question of the stay did not arise. Starting at [16], referring to the earlier Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and Gallo v Dawson [1990] HCA 30, the specific considerations relevant to whether or not the Appeal Panel will grant an extension of time are set out start at [16]-[22]. These include: (1) the length of the delay; (2) the reason for the delay; (3) the extent of any prejudice suffered by the respondent; and (4) the appellant's prospects of success.

Link: Read the decision on the NSW Caselaw website.
Corbett v Burns [2014] NSWCATAP 42
14 August 2014 – N Hennessy LCM (Deputy President) J Wakefield (Senior Member) and Dr B Field (General Member)

Summary: Appeal against decision of the former Administrative Decisions Tribunal and an application to extend the appeal to the merits of the Tribunal's decision. Consideration of the statutory construction of the meaning of homosexual vilification under the Anti-Discrimination Act 1977 (NSW), s 49ZT(1).

Link: Read the decision on the NSW Caselaw website.
Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41
12 August 2014 – Wright J (President), M Harrowell (Principal Member) and Dr J Renwick SC (Senior Member)

Summary: Application for extension of time to appeal, and if granted, an appeal from orders terminating the appellant's residential tenancy agreement and granting possession. The appellant was functionally illiterate and had an arrangement in place with Housing NSW for all notices and information to be sent to a support service provider. Notice of the hearing was only sent to the appellant’s residential address not to the support service provider. Consideration of whether or not the appellant was given a 'reasonable opportunity to be heard' per Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c): see [63]-[67]. It was held in the circumstances that real and effective notice of the hearing had not been given. Extension of time granted, appeal allowed, decision and orders set aside and the whole matter remitted for rehearing.

Link: Read the decision on the NSW Caselaw website.
Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37
5 August 2014 – Wright J (President)

Summary: Application by appellant for a stay of orders made by the Consumer and Commercial Division pending the determination of the appeal. The reasons set out the general principles applicable to the granting of a stay by the Appeal Panel. Per the Civil and Administrative Tribunal Act 2013 (NSW), s 43(3), the Tribunal "may" grant a stay. That discretion must be exercised judicially, governed by the words of the Act, taking guidance from the courts approach to granting a stay. The general principles are, at [9]: (1) a successful party below is, generally, entitled to the benefit of the decision and the orders below; (2) the onus is on the applicant to make the case for why it is appropriate to grant a stay in the circumstances; (3) lodging an appeal is not itself sufficient to demonstrate that it is appropriate to grant a stay; (4) granting a stay will be appropriate where it is necessary to preserve the effectiveness of the appeal; (5) consideration of the strength of the application, especially where the application may have been lodged for the purpose of delay or obtaining respite from the execution of the orders; (6) the stay may be granted with such conditions as the Tribunal specifies to achieve a result that is fair for all parties; (7) consideration of the balance of convenience and the competing rights of the parties; and (8) the overriding principle is 'what the interests of justice require'.

Link: Read the decision on the NSW Caselaw website.
White v Carlton Tow Bars [2014] NSWCATAP 36
4 August 2014 – Wright J (President) and Hennessy LCM (Deputy-President)

Summary: Application by the appellant to issue a summons for the purpose of obtaining evidence under the Civil and Administrative Tribunal Act 2013 (NSW), s 48 and the Civil and Administrative Tribunal Rules 2014 (NSW), Rule 34. The application was refused on the basis that there were problems with the form of the draft summons submitted by the appellant. In particularly: (1) the summons did not correctly identify the person who was ordered to comply, see [19]; (2) the address provided was a post office box, see [21]; (3) no documents to be produced were identified, see [22]; and (4) as required in the circumstance, the appellant had not applied for leave for the summons to be served outside of NSW under the Service and Execution of Process Act 1992 (Cth), see [25]. It was also noted that the party applying for the summons not the Tribunal was responsible for serving the summons.

Link: Read the decision on the NSW Caselaw website.
Bratby v Blain [2014] NSWCATAP 28
10 June 2014 – Hennessy LCM (Deputy-President) and S Westgarth (Deputy President)

Summary: Appeal from an interlocutory decision, requiring the grant of leave. The principles for granting leave are set out starting at [12], in particular, whether the decision was more than arguably wrong (at [15](1)), the importance of finality and proportionality (at [15](2)) and the public interest (at [15](3)). Leave was not granted.

Link: Read the decision on the NSW Caselaw website.
NSW Civil and Administrative Tribunal, Level 9, 86-90 Goulburn Street, 2000, Sydney, Australia
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