NCAT Legal Bulletin Issue 5 of 2025 | 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, the New South Wales Court of Appeal, and the Supreme Court of New South Wales published in September, October and November 2025. | CD v The Commonwealth of Australia; CD v Director of Public Prosecutions (SA) [2025] HCA 37: The lawfulness and admissibility of intercepted communications of the plaintiff on a particular application named “AN0M” was challenged under s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act). The South Australian Court of Appeal rejected the plaintiff’s contention that the evidence was not lawfully obtained under the Act. After special leave to appeal was granted by the High Court concerning that decision, the Commonwealth Parliament enacted the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), deeming such material to have been lawfully obtained. The High Court held that the impugned provisions do not infringe the judicial power of the Commonwealth or impermissibly interfere with the integrity of courts vested with federal jurisdiction.
| Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235: In proceedings under s 18B of the Home Building Act 1989 (NSW) against a builder and developer (the appellants), the Court of Appeal held that the Owners Corporation had no “positive obligation” to provide an opportunity for the appellants to rectify defects and confirmed that the appellants bore the onus of proof and persuasion from beginning to end with respect to their claim that the respondent acted unreasonably.
| Rahman v Rahman [2025] NSWCA 219: The Court of Appeal refused leave to appeal from orders of the Supreme Court. The Court addressed the legal principles in relation to a grant of leave to appeal, namely that there must be some issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. Their Honours also held that discretionary decisions, such as those involving matters of practice or procedure, attract the added restraint outlined in House v The King (1936) 55 CLR 499; [1936] HCA 50. Some error must be established in the making of the orders.
| | | Zheng v The Owners – Strata Plan No 83678 [2025] NSWSC 1038: The plaintiff was granted leave to conduct an appeal on behalf of the Owners Corporation in circumstances where a resolution to discontinue the appeal was passed by a bare majority of one, including the vote of the said owner. The Court found that justice required that this was an exception to the rule that an individual has no standing to bring proceedings in respect of a wrong to a company.
| Abdallah v Paco Nominees Pty Ltd [2025] NSWSC 1267: The Supreme Court dismissed an appeal from an NCAT Appeal Panel decision, finding that there no denial of procedural fairness where the appellant left the first instance hearing and did not file a defence. The Court held that there was no error of law as the appellant had a reasonable opportunity to defend the proceedings but failed to comply with directions and chose not to proceed. Leave to appeal was refused on all grounds.
| Hurlstone Park Hotel Operations Pty Limited v Independent Liquor and Gaming Authority [2025] NSWSC 1214: In an appeal from an NCAT Appeal Panel decision, the Supreme Court granted leave to appeal and dismissed the appeal, holding that under s 49 of the Liquor Act 2007 (NSW), an extended trading authorisation can only be granted to the current licensee who is also the applicant (as the “relevant person who is aggrieved” as required by s 13A of the Gaming and Liquor Administration Act 2007 (NSW)). Although leave was granted due to the public importance of the issue, the appeal was dismissed because NCAT lacked power to determine the application once the licensee changed.
| | Ebrahim v St George Community Housing Limited trading as SGCH [2025] NSWSC 1251: The Supreme Court refused an urgent application for a stay of execution of NCAT orders requiring the applicant and his family to vacate their current residence. The property was leased by St George Community Housing Limited to Saint Francis Social Services (House of Welcome) (together, the defendants), who then provided accommodation to the plaintiff. The lease between the defendants was subsequently validly terminated. NCAT ordered vacant possession of the property and refused the plaintiff standing to challenge the termination. The Court held NCAT did not err in its decision and refused to stay the orders for vacant possession.
| Di Liristi v Yosef (No 2) [2025] NSWSC 1155: In an application seeking to set aside or vary a previously delivered judgment, it was accepted that the identified issues were regrettable, however the errors were of no consequence to the core decision, namely that NCAT has no jurisdiction to hear matters that are before the Court. Noting that UCPR rr 36.15 and 36.16 should only be used sparingly, the notice of motion was dismissed.
| | | | Blooms the Chemist Management Services Ltd v Pharmacy Council of NSW [2025] NSWSC 1211: The Supreme Court found that, on the evidence, the plaintiff would obtain an indirect financial interest by registering the second defendant’s proposed financial interest in the pharmacy for the purposes of Sch 5F to the Health Practitioner Regulation National Law (NSW). The Court exercised its discretion not to make the declaration sought and dismissed the summons.
| Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174: The Supreme Court refused leave to appeal an Appeal Panel decision, finding that there was no reasonably available construction of s 10 of the Home Building Act 1989 (NSW) that would preclude the Appeal Panel upholding an order setting off money owed to the builder.
| Adams v Commissioner of Police, New South Wales Police Force [2025] NSWSC 1181: The Supreme Court dismissed Mr Adams’ judicial review of an Appeal Panel decision and rejected Mr Adams’ primary contention that alleged wrongdoers are not entitled to the public interest consideration against disclosure under cl 1(d) in the Table in s 14 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). This had the effect that names in the documents produced under the GIPA Act would remain redacted.
| | | | CD v The Commonwealth of Australia; CD v Director of Public Prosecutions (SA) [2025] HCA 37 8 October 2025 – Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
In sum: CD and TB filed an interlocutory application in criminal proceedings seeking, among other things, an order for the exclusion of certain communications accessed under warrants issued to the Australian Federal Police (AFP) on an application known as “AN0M”, as evidence, on the ground that the communications were unlawfully intercepted in contravention of s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act") and were therefore inadmissible under that Act. The trial judge dismissed the application and the South Australian Court of Appeal held that the AN0M application did not involve an interception of a communication contrary to s 7(1) of the TIA Act. CD and TB were granted special leave to appeal to the High Court against the Court of Appeal decision.
The Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) (Confirmation of Application Act) was enacted after the grant of special leave to appeal. The Act provided that information obtained under specified warrants issued to the AFP was not intercepted while passing over a telecommunications system and was lawfully obtained. In a special case the plaintiffs stated two questions of law for the opinion of the Full Court. Specifically, whether the Confirmation of Application Act was invalid, either in whole or in part, because: (a) it is an impermissible exercise by the Parliament of the judicial power of the Commonwealth; or (b) it impermissibly interferes with and undermines the institutional integrity of courts vested with federal jurisdiction.
Catchwords: Constitutional law (Cth) – Judicial power of Commonwealth – Admissibility of evidence – Where information and records obtained pursuant to warrants – Where Surveillance Legislation (Confirmation of Application) Act 2024 (Cth) ("Confirmation of Application Act") deems information and records obtained under specified warrants to have been lawfully obtained – Whether Confirmation of Application Act invalid – Whether Confirmation of Application Act impermissible exercise by Parliament of judicial power of Commonwealth – Whether Confirmation of Application Act impermissibly interferes with and undermines institutional integrity of courts vested with federal jurisdiction.
Words and phrases: "admissible", "communication", "criminal proceedings", "evidence", "exercise of judicial power", "illegally obtained", "inadmissible", "intercepting a communication", "interfere with the integrity of courts", "judicial power", "legislative power", "statutory concept", "telecommunications system", "undue impairment of judicial power", "unlawfully intercepted", "usurpation of judicial power", "warrant".
Constitution, Ch III.
Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), ss 4, 5, 6, 7.
Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 63, 77.
Held (The Court unanimously held that the Confirmation of Application Act was not invalid on either of the asserted grounds):
(i) The High Court unanimously answered the questions in the negative, holding that the impugned provisions do not infringe the judicial power of the Commonwealth or impermissibly interfere with the integrity of courts vested with federal jurisdiction.
(ii) The Court also heard an application for revocation of special leave granted to CD and TB to appeal from a decision of the Court of Appeal of the Supreme Court of South Australia which answered questions of law concerning the application of the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act") before the enactment of the Confirmation of Application Act.
(iii) Link to the High Court’s case summary is here. | Court of Appeal of New South Wales | Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235 27 October 2025 – Leeming, Kirk, Ball JJA
In sum: In proceedings brought by the Owners Corporation (the respondent) under s 18B of the Home Building Act 1989 (NSW) (HB Act) against the builder and developer (the appellants) of an apartment building with regard to a range of defects, the appellants claimed that they were ready willing and able to rectify the defects, however the respondent would not let them do so. The matter was referred to a referee who produced a report on liability issues and then separately on quantum for the rectification works. The referee concluded that the appellants bore the onus of proving that the respondent’s decision to deny access to rectify the defects was unreasonable. He concluded that the respondent did not act unreasonably in losing confidence in the appellants and in refusing to allow them access to carry out further rectification works.
The respondent sought that both reports be adopted by the Supreme Court and that judgment be entered for an identified sum together with a countervailing motion seeking declaration that the respondent had failed to mitigate its loss such that any avoidable loss could not be recovered. The primary judge rejected the appellant’s challenges to the report and awarded the respondent the amount of $1.95 million excluding GST. On appeal, the appellants argued that the respondent failed to mitigate its loss. The Court of Appeal held that the respondent had no “positive obligation” to provide an opportunity for the appellants to rectify the defect and confirmed that the appellants bore the onus of proof and persuasion from beginning to end with respect to their claim that the respondent acted unreasonably.
Catchwords: CONTRACTS — remedies — damages — mitigation of loss — whether conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded — legal and evidentiary onus on the party asserting a failure to mitigate — no “positive obligation” to provide builder an opportunity to rectify damage — invocation of a “shifting” or “tactical onus” misconceived and should be avoided. CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — claimed denial of procedural fairness — no procedural unfairness established.
Held (Dismissing the appeal with the appellants to pay the respondent’s costs):
(i) Link to the Court of Appeal’s case summary is here. | Rahman v Rahman [2025] NSWCA 219 2 October 2025 – Payne, McHugh, Free JJA
In sum: The Court of Appeal refused leave to appeal various orders of the Supreme Court on the basis that the appellant did not establish any issue warranting a grant of leave. The Court of Appeal set out the principles required for a grant of leave to appeal, namely that there must be some issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable and that discretionary decisions such as those involving matters of practice or procedure attract the added restraint of the requirements of House v The King (1936) 55 CLR 499; [1936] HCA 50. Some error must be established in the making of the orders.
Held (Refusing leave to appeal and dismissing the summons):
(i) Link to the Court of Appeal’s case summary is here. | Owners Corporation SP6534 v Elkhouri (No 2) [2025] NSWCA 237 29 October 2025 – Ward P, McHugh JA, Griffiths AJA
In sum: The principal judgment in this matter was delivered on 27 November 2024 which provided for “the remaining amounts claimed by the [appellant] Owners Corporation”. The orders made had granted liberty for the parties to apply for a variation of the orders, which the parties took up in an unrelated issue and final orders were made on 18 December 2024. On 28 July 2025, the Owners Corporation filed a notice of motion seeking an order to clarify that the earlier orders for “remaining amounts claimed” included “future works”. The Court held that the Owners Corporation did not raise the issue on appeal and that it should be held to the case it ran on appeal. The notice of motion was dismissed with costs.
Facts: In the Supreme Court decision Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP 6534 [2024] NSWSC 173 (the Primary Judgment), the primary judge, Elkaim AJ, found that Mr Elkhouri had not completed the necessary works and that the Owners Corporation was entitled to recover certain costs and liabilities. The primary judge also made a declaration that the relevant by-law 30.3 was “unjust” and remitted the matter to NCAT for it to make orders about by-law 30.3 arising out of the declaration. By reason of this finding, the primary judge found that the figure for “future work immediately falls away”. On appeal, the Court was not addressed on a claim for future work.
Held (Dismissing the notice of motion with costs):
(i) The Court found that “a good deal of attention” was paid to the relevant by-law in the six pages of orders made, however there was “still more basic issue” that “no explanation ha[d] been proffered for why the claim for future work was not raised in the notice of appeal or in the written or oral submissions in this Court as something that remained to be determined”. The Court held that it was appropriate to proceed on the footing that there was a forensic choice not to raise the issue and the Owners Corporation should be held to the case that it ran on appeal. | Colman v The Owners – Strata Plan 61131 [2025] NSWCA 203 4 September 2025 – Stern JA; Price AJA
In sum: On appeal from a Supreme Court decision (which dismissed an appeal of an NCAT Appeal Panel decision), Mr Colman alleged that Kirk J (and the Appeal Panel and NCAT) constructively failed to exercise jurisdiction in determining whether the Owners Corporation had breached its obligations under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSM Act). It was contended that Kirk J did not consider that Mr Colman’s contention that, contrary to the Appeal Panel’s reasons, evidence of the builder that further waterproofing was required was “unchallenged” and his Honour failed to resolve a “contradiction”. The Court of Appeal rejected this contention and found that Kirk J had considered and rejected criticism of the Appeal Panel’s reasons, which had quoted the builder at length, and found that the complaint was “really a challenge to the Tribunal’s fact-finding” in circumstances where the builder was told the broader work was at Mr Colman’s expense, yet they sought for the Owners Corporation to pay that work in the NCAT proceedings.
Facts: This dispute arose out of the Owners Corporation’s denial of Mr Colman’s request for approval of building works on the terrace of his lot, some of which affected common property. In June 2021, NCAT dismissed Mr Colman’s application for an order under s 126 of the SSM Act and damages under s 232 of the SSM Act for alleged breaches of the Owners Corporation’s duties under s 106 of the SSM Act. In November 2023, an Appeal Panel dismissed Mr Colman’s appeal on a question of law. Mr Colman then sought leave to appeal from the Appeal Panel decision to the Supreme Court of NSW on a question of law under s 83(1) of the NCAT Act. On 20 February 2025, Kirk J granted leave to appeal on some, but not all, of the grounds advanced but dismissed the appeal with costs: Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63.
Held (Refusing leave to appeal as there was no arguable constructive failure to exercise jurisdiction):
(i) The Court of Appeal addressed each of Mr Colman’s contentions of error. First, Mr Colman alleged that Kirk J did not identify errors or contradictions in the Appeal Panel’s reasons concerning evidence of the “broader work” the builder was required to undertake, and for which Mr Colman did not have approval from the Owners Corporation. In particular, Mr Colman submitted that Kirk J should have identified errors in the NCAT Appeal Panel’s reasons. Contrary to Mr Colman’s contention, the Court of Appeal found that Kirk J was aware of and had rejected Mr Colman’s submission that the Appeal Panel had ignored or overlooked evidence. The Court of Appeal noted that “[i]t is for the parties to present their respective cases to the Court, and a failure by a party to draw the Court’s attention to evidence is an unpromising basis for a contention of constructive failure to exercise jurisdiction”.
(ii) The Court of Appeal rejected the contention that Mr Colman had a claim arising from s 106 of the SSM Act in relation to ducting which he said was clearly raised before NCAT and the Appeal Panel, and which was raised before Kirk J. Mr Colman relied on two footnotes where “ducting works” were given as an example in his opening written outline before Kirk J and a second footnote in his supplementary submissions. This contention was said to face “insuperable difficulties”.
(iii) Mr Colman’s final contention was that Kirk J constructively failed to deal with his claim that the relevant breach entitling him to damages was an ongoing breach of s 106(5) of the SSM Act constituted by the respondent’s ongoing failure to carry out the waterproofing works. The Court of Appeal found that this was not clearly articulated before Kirk J and, as a matter of statutory construction, damages could not be claimed under s 106(5) of the SSM Act in respect of work that had been carried out where those works were not approved either prospectively or retrospectively.
(iv) The contentions raised by Mr Colman did not identify any arguable constructive failure to exercise jurisdiction by Kirk J. Moreover, the Court of Appeal did not accept that the matters raised by Mr Colman are suggestive of any systemic failure in Tribunal practice or any lack of candour or honesty by corporate respondents. Leave to appeal was refused. | | Supreme Court of New South Wales | Zheng v The Owners – Strata Plan No 83678 [2025] NSWSC 1038 8 September 2025 – Hammerschlag CJ in Eq
In sum: The plaintiff sought leave to conduct, on behalf of the Owners Corporation, an appeal from a decision in the Consumer and Commercial Division of NCAT. The appeal concerned the retrospective approval of alterations to common property by Mr Khatib. The Owners Corporation appealed that decision and prior to the listed hearing date, an Extraordinary General Meeting passed a resolution that the Corporation withdraw the appeal. Mr Khatib voted in favour of withdrawal. Mr Khatib brought before the Appeal Panel an application for summary dismissal of the appeal, which was heard and dismissed on the basis that the validity of the resolution was challenged. The Supreme Court approved Mr Zheng’s application to conduct the appeal, finding that justice dictates that an exception to the rule that individuals have no standing to bring proceedings in respect of a wrong against a company, applies in this case.
Facts: Mr Khatib owns a lot in Strata Plan No 83678 (the Owners Corporation). Mr Zheng (the plaintiff) is secretary and chairperson of the Owners Corporation. Without obtaining a special resolution to authorise it, Mr Khatib constructed an awning. Following a hearing in the Consumer and Commercial Division of NCAT, a Senior Member approved alterations to the common property by prescribing a change to the by-laws in the form of a common property rights by-law. The by-law retrospectively regularised the construction of the awning.
The Owners Corporation internally appealed the decision on 2 July 2025. On 17 July 2025, at an Extraordinary General Meeting of the Owners Corporation, a resolution passed by eight votes to seven to withdraw the appeal. Mr Khatib voted in favour, without which, the resolution would have been defeated. Mr Khatib brought a summary dismissal application to an Appeal Panel, which was heard and dismissed on 30 July 2025, on the basis that the validity of the resolution was challenged by the plaintiff. By Summons filed in the Supreme Court, the plaintiff sought leave to conduct the appeal of the first instance decision in the Consumer and Commercial Division in NCAT.
Held (Plaintiff granted leave to conduct NCAT appeal on behalf of Owners Corporation):
(i) The Court considered the rule in Carre v Owners Corporation – Strata Plan 53020 (2003) 58 NSWLR 302; [2003] NSWSC 397, that a company is the proper plaintiff to bring an action in respect of a wrong done to it and that consequently an individual member has no standing to bring proceedings in respect of a wrong to a company, applies to strata title owners corporations. However. His Honour noted there is exception to this where justice requires it: Tan v The Owners Strata Plan 22014 (No 2) [2015] NSWSC 1920 at [91]. The Court found that “[j]ustice dictates that that exception to the operation of the rule should apply here”.
(ii) Had Mr Khatib not voted, the resolution (if otherwise valid) would not have passed. Hammerschlag CJ in Eq stated that “[t]o give the resolution effect would have the result that Mr Khatib’s own vote would bring the proceedings, concerning his contentious awning, to an end where a significant proportion of the owners voted to continue the appeal.” In the circumstances, it was appropriate for the plaintiff to be given carriage of the appeal on behalf of the Owners Corporation. | Abdallah v Paco Nominees Pty Ltd [2025] NSWSC 1267 30 October 2025 – Payne JA
In sum: The Supreme Court dismissed an appeal from an Appeal Panel decision that rejected claims that Mr Abdallah (the builder) was denied procedural fairness in NCAT at first instance. The builder argued that NCAT’s refusal of his adjournment application following the withdrawal of his lawyers at the hearing was a denial of procedural fairness. Critically, after the adjournment application was refused, the builder left the hearing and did not attend the substantive hearing and had never filed a defence in the proceedings. The Court held the Appeal Panel did not make any errors of law in its finding that NCAT did not err because the builder had a reasonable opportunity to defend the proceedings but failed to comply with directions and chose not to proceed. The Court refused leave to appeal on all grounds.
Facts: In 2022, Paco Nominees Pty Ltd (the defendant) brought proceedings in NCAT concerning defective building works against the builder Georges Abdallah (the builder). Despite numerous procedural directions, the builder did not file a defence. On the third listed hearing date, the builder sought an adjournment and NCAT warned the builder in writing prior to the hearing date that he should be ready to proceed if an adjournment was refused. At the hearing, the plaintiff had instructed his lawyers to immediately withdraw if the adjournment application was unsuccessful, which it was. After his lawyers withdrew, the builder renewed his adjournment request on the basis that he was now self-represented, which was again refused. The builder then left the hearing and NCAT proceeded in his absence, ultimately making orders in favour of the now defendant.
On appeal, the builder complained about the decision to refuse the adjournment and about an alleged denial of procedural fairness after his lawyers withdrew. The Appeal Panel dismissed both complaints. It was noted that the Appeal Panel found as a fact that a more probable explanation than the plaintiff being abandoned by his legal advisers was that the plaintiff instructed his lawyers not to defend the proceedings if he was denied an adjournment. The Appeal Panel held that this was not a case where the builder was denied a fair hearing, but one where the builder failed to comply with directions for documents and evidence, did not serve various documents (despite repeated requests to do so by the defendant's legal representatives), and did not comply with fresh directions of NCAT or take the opportunity afforded by NCAT to do so. The builder filed a summons to appeal the decision of the Appeal Panel to dismiss his procedural fairness complaint to the Supreme Court.
Held (Dismissing the appeal):
(i) His Honour noted that, at its heart, this case is about the application of well understood principles of procedural fairness to a case where a self-represented litigant, knowing that the substantive case had been listed to proceed, chose to leave the courtroom after his adjournment application had been refused. His Honour concluded that there was no error of law in the decision of the Appeal Panel to reject the plaintiff’s complaints.
(ii) The proposed grounds of appeal suffered from deficiencies. The stated “strongest ground” alleged jurisdictional error in the purported failure of the Appeal Panel to consider and respond to a substantial and clear argument of the plaintiff, namely an affidavit (and exhibits) of the builder, which the Appeal Panel had refused the tender of in line with the decision of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 because the “fresh evidence” was reasonably available at the time of the first instance hearing. The Court rejected ground 4 and held that it was not a question of law, rather “it sought to cavil with an evidential ruling based upon a factual finding as to whether the evidence was “reasonably available” at the relevant time”.
(iii) The builder contended in ground 1 of the appeal that the Appeal Panel erred in failing to find that the refusal of the adjournment application was a denial of procedural fairness. The Supreme Court held that this ground did not raise a question of law as the appeal was confined to the decision of the Appeal Panel and does not extend to the NCAT decision at first instance: Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]. His Honour held that the Appeal Panel’s conclusion that there was no requirement to adjourn a proceeding to allow a delinquent party further opportunities to construct a case was correct and that there was no breach of procedural fairness where the builder was given a reasonable opportunity to defend the proceedings.
(iv) Of the remaining grounds of appeal, Ground 3 was abandoned at the Supreme Court hearing. Ground 2 was also found not to raise a question of law as the operative particulars of the ground raised only questions of fact. Ground 2 essentially alleged that NCAT did not explain the relevant procedures to him and the Appeal Panel erred in failing to so to conclude. The Court considered s 38 of the NCAT Act and found that, as the builder left when the hearing had “barely commenced”, there was no occasion that arose to explain the procedures and practices of NCAT. The Appeal Panel’s finding was “plainly correct”. Leave was refused to appeal on ground 2. | Hurlstone Park Hotel Operations Pty Limited v Independent Liquor and Gaming Authority [2025] NSWSC 1214 16 October 2025 – Harrison AsJ
In sum: In an appeal from a decision from an Appeal Panel of NCAT, the Supreme Court confirmed that under s 49 of the Liquor Act 2007 (NSW), the Authority, or NCAT standing in its shoes, could only grant an “extended trading authorisation” to the present licensee, and further only where that licensee was the applicant (because of s 13A of the Gaming and Liquor Administration Act 2007 (NSW)). Leave to appeal was granted as the Court considered that the reach of s 49 of the Liquor Act to many venues and therefore the community, is a matter of general public importance. The appeal was dismissed as NCAT had no power to determine the application when the licensee changed.
Facts: Hurlstone Park Hotel Operations Pty Ltd is the first applicant, it is the corporation in control of the Hurlstone Park Hotel (the Hotel). The second applicant, Mr Orr, was the licensee who commenced the application to the respondent, the Independent Liquor and Gaming Authority (the Authority) in July 2021, for the right to sell liquor beyond standard trading hours, known as an “extended trading authorisation” (ETA). In February 2022, Mr Orr ceased to be the licensee of the Hotel and was succeeded by various different licensees before returning to the role two different times. Mr Orr is not currently the licensee. The Authority refused to grant the ETA.
In February 2023 the applicants filed with NCAT an application for administrative review of the decision to refuse the ETA. In September 2023, the Authority filed submissions in NCAT alleging that the applicants had no standing to proceed with the appeal as Mr Orr was no longer the licensee. The hearing was adjourned in anticipation of a decision of the Supreme Court in Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2024] NSWSC 240 (Taphouse) concerning similar issues.
In Taphouse, this Court decided that under s 49 of the Liquor Act 2007 (NSW), the Authority, or NCAT standing in its shoes, could only grant an ETA to the present licensee, and further only where that licensee was the applicant (as the “relevant person who is aggrieved” as required by s 13A of the Gaming and Liquor Administration Act). There, the applicant-licensee was no longer in the picture, and NCAT, which stood in the shoes of the Authority, had no power to grant an authorisation in its favour. Based on the reasoning in Taphouse, the Appeal Panel determined that, while there are distinguishable facts, the Authority could never have granted Mr Orr an ETA in the first place as he was no longer licensee and therefore the Tribunal could not have done so on review.
Held (Granting leave to appeal and dismissing the appeal):
(i) With regard to the grant of leave to appeal, the Court found that the construction of s 49 of the Liquor Act is a matter of general public importance. That section touches on many venues which serve alcohol and therefore the community more broadly. It is desirable that the meaning of that section be clear and unambiguous. Although Taphouse has provided important and comprehensive guidance, further comments are necessary to cover this precise factual scenario. The Court did not grant leave to appeal.
(ii) The applicants submitted that, in contrast to Taphouse, where the applicant-licensee had fallen out of the picture, the applicant-licensee in this case again became the licensee at some point. The applicants submit that this is sufficient to distinguish their case from Taphouse so as to arrive at a different result. While it was noted that the applicant’s submission concerning the requirement for a renewal of applications as licensees change had some force, The Court noted that there is capacity in the Liquor Act to overcome such an inconvenience, for example, by installing a corporate licensee whose management could more easily be altered. The Court held that the right to pursue an application under s 49 of the Liquor Act expires when a licensee changes. | Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2025] NSWSC 1065 18 September 2025 – Walton J
In sum: The Supreme Court refused leave and otherwise dismissed an appeal from an Appeal Panel decision that confirmed that the plaintiff’s application for damages under s 106(5) of the Strata Schemes Management Act 2015 (NSW) (“the SSM Act”) was out of time and that NCAT was correct to refuse an extension of time.
Facts: Hua Nan Trading Pty Ltd (the plaintiff) owned a unit in Strata Plan No 32396 in Lidcombe, Sydney. In February 2020, heavy rain fell and water entered the plaintiff’s unit. The plaintiff sought to claim damages from the defendant under s 106 of the Strata Schemes Management Act 2015 (NSW) (“the SSM Act”) because of the defendant's failure to maintain and repair common property, namely, a down pipe, which caused damage in the plaintiff’s unit. In February 2022, the plaintiff made an application to NCAT for damages pursuant to s 106(5) of the SSM Act. However, under s 227 of the SSM Act, the parties were required to undergo mediation before NCAT could accept the application. An unsuccessful mediation occurred on 22 April 2022. The plaintiff lodged a second application with NCAT in April 2022, which was accepted.
In November 2022, the Consumer and Commercial Division (CCD) of NCAT dismissed the application on the basis that it was out of time under s 106(6) of the SSM Act, holding that s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) did not give NCAT power to extend the period in the SSM Act. The plaintiff appealed that decision and an Appeal Panel held that NCAT did have power to extend the time under s 106(6) of the SSM Act and the matter was remitted back to CCD for redetermination. In the remitted proceedings, the plaintiff’s application for an extension of time was dismissed because the explanation for the delay was unsatisfactory and it was not demonstrated that the case had more substantial merit than being fairly arguable. The plaintiff then appealed that decision. A differently constituted Appeal Panel refused leave to appeal from the decision, finding that NCAT did not err in determining that the application was made out of time and “respectfully agree[d] with the Tribunal’s analysis that Hua Nan’s claim was weak”.
Held (Leave to appeal was refused and the Summons was dismissed with costs):
(i) The Court found that it is a precondition to NCAT accepting an application that there has been an unsuccessful mediation under s 227 SSM Act. When the plaintiff made the first application in February 2022, this condition had not been met and s 227 of the SSM Act requires that a “registrar must not accept” such an application (noting that mediation did not occur until April 2022). The plaintiff’s submissions ignored the fact that the February 2022 application had not been accepted and an email from the NCAT Registry stated “[t]his file is closed and cannot be re-opened” and the requirements to lodge a “new application”.
(ii) Leave to appeal to the Supreme Court was refused because the contentions ventilated before the Appeal Panel have not changed: the claim was filed in April 2022, more than 2 years after the plaintiff became aware of the loss (and therefore out of time). There were no identified errors in the Appeal Panel’s reasoning, or in the exercise of its discretion, and the plaintiff was not able to establish how it would suffer a substantial miscarriage of justice from the Appeal Panel’s refusal to grant leave where the claim was out of time. | Ebrahim v St George Community Housing Limited trading as SGCH [2025] NSWSC 1251 16 October 2025 – Cavanagh J
In sum: The Supreme Court refused an application seeking a stay of execution of NCAT orders, the effect of which would require the applicant and his family to leave the premises where they currently reside. The first defendant, St George Community Housing Limited, offers rental accommodation to organisations such as the second defendant, Saint Francis Social Services (House of Welcome), who in turn provide short-term accommodation for people such as the plaintiff. The first defendant has been forced to terminate its lease with the House of Welcome for the property where the plaintiff resides, as it may be scheduled for demolition. NCAT made orders that validly terminated the lease and required vacant possession of the premises on 20 October 2025. NCAT refused standing to the plaintiff and the Supreme Court did not find NCAT erred in making the decision it did.
Facts: The plaintiff came from Egypt earlier this year and he was put in touch with the House of Welcome (second defendant). They assisted him by providing accommodation to him for he and his family, which he says he understood would be for 12 months. He is endeavouring to make plans to settle in Australia and at the moment he is on a bridging visa.
Held (Refusing the application for a stay of NCAT’s orders requiring the plaintiff to leave the premises at a certain time):
(i) The plaintiff's main contention was that he was told that the housing would be for 12 months and that if he is required to leave now, he would be homeless. It was noted that the House of Welcome had done what it could to provide alternative accommodation, which was declined by the plaintiff as unsuitable for various reasons. NCAT had made orders that St George Community Housing had validly terminated the lease with the House of Welcome and therefore, vacant possession was required. The Court noted that it was apparent from the plaintiff’s grounds of appeal that he misunderstood the relationship between the plaintiff, the House of Welcome and St George Community Housing. NCAT refused standing to the plaintiff (see [12]) and the Court was unable to conclude that NCAT erred on the position it took. The stay application was refused. | Di Liristi v Yosef (No 2) [2025] NSWSC 1155 20 June 2025 – Elkaim AJ
In sum: In an application seeking to set aside or vary a previously delivered judgment, it was accepted that the identified issues were regrettable, however the errors were of no consequence to the core decision, namely that NCAT has no jurisdiction to hear matters that are before the Court. Noting that UCPR rr 36.15 and 36.16 should only be used sparingly, the notice of motion was dismissed.
Facts: The plaintiff previously succeeded in a judicial review application in this matter on the basis that NCAT does not have jurisdiction to determine proceedings where court proceedings are on foot in relation to the same matters. The reasons were published on 20 June 2025 (Di Liristi v Yosef [2025] NSWSC 642). Elkaim AJ ordered that the decision of NCAT be set aside. A notice of motion was filed by the defendant on 24 June 2025 with a supporting affidavit from the plaintiff’s solicitor. The notice of motion sought orders under rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). These rules relate to the setting aside or variation of a previously delivered judgment. On 3 July 2025, the defendant also filed a notice of intention to appeal from the judgment.
The part of the judgment in dispute raised the issue of the existence of a periodic or a fixed term agreement. The defendant submitted that there could never have been a fixed term tenancy when the notice of termination was served in December 2024 because the agreement had continued after the end of the fixed term (see Residential Tenancies Act 2010 (NSW) s 18). Although the plaintiff said that the tenancy was fixed for three years with two options to renew for another three years, this is contrary to the lease and the plaintiff’s own pleadings, noting that at the primary hearing the plaintiff, in two affidavits, suggested the lease was for nine or ten years.
Held (An error in paragraph 19 of the judgment was noted and the notice of motion was otherwise dismissed with no order as to costs):
(i) UCPR rr 36.15 and 36.16 should only be used sparingly. The core of the first decision was the finding of common issues between the NCAT and District Court proceedings. While the defendant may be correct that the tenancy had become periodic in December 2024, that does not prevent any argument about the nature of the tenancy before 1 September 2024 being common in the District Court and NCAT proceedings. His Honour remained of the view that even if the periodic tenancy point was not common to both proceedings, there was still a common argument relating to termination notices which would have, in any event, removed NCAT’s jurisdiction.
(ii) At the hearing, the defendant also referred to an alleged error in paragraph 19 of the judgment, which referred to the contents of a statement of claim filed on 23 August 2023 and the same section in the amended statement of claim lodged on 1 March 2024. The amended statement of claim includes the words “termination notices” whereas the August copy does not. At the hearing it became clear that the March 2024 document was rejected on the same day it was filed by the District Court Registry. Elkaim JA set out a chronology derived from the exhibits in the original hearing, noting that another copy of the amended statement of claim was reportedly filed on 7 May 2024. If that filing is valid, then there is no issue as the filing pre-dated the NCAT hearing on 16 April 2025 and NCAT did not have jurisdiction. The error is of no consequence. | Luo v Health Care Complaints Commission [2025] NSWSC 1121 29 September 2025 – Griffiths AJ
In sum: Yun Sen Luo appealed from a decision of NCAT (Health Care Complaints Commission v Luo [2025] NSWCATOD 5 (HCCC v Luo (No 1)) that found him guilty of unsatisfactory professional conduct and professional misconduct under ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (National Law). Mr Luo was alleged to have directed an elderly patient with Type 2 diabetes to cease all prescribed Western medication, after which the patient died. The Court dismissed the appeal with costs, noting that most grounds of appeal raised factual issues requiring leave, which was not sought, and the remaining grounds were not made out. However, the Court held that all parties misconstrued s 130 of the National Law and the correct National Board was the Chinese Medicine Board of Australia in this case, yet the error was not material in circumstances where there was no evidence of Mr Luo notifying the National Board of his criminal charge.
Facts: In 2013 Mr Luo was a registered as health practitioner of Chinese medicine. Between 26 May 2018 and 8 June 2018, Mr Luo was asked to treat a skin condition of an elderly woman who suffered from Type 2 diabetes. NCAT found that Mr Luo had directed that patient to cease taking all Western medication prescribed to her by her doctors that treated her high blood sugar. On 8 June 2018, the patient was admitted to Hornsby Hospital where she was pronounced dead. Hornsby Hospital’s documents noted that the likely cause of death was cardiac arrest from hyperkalemia in the context of non-managed Type 2 diabetes (HCCC v Luo (No 1 at [96]). Mr Luo was indicted and in March 2022 ultimately found not guilty on a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
On 14 November 2023, the Health Care Complaints Commission (HCCC) filed an application for disciplinary findings and orders under the National Law against Mr Luo in NCAT. In its decision (HCCC v Luo (No 1), NCAT upheld three of the four complaints referred to it by the HCCC and found that Mr Luo was guilty of unsatisfactory professional conduct under s 139B of the Health Practitioner Regulation National Law (NSW) (National Law) and professional misconduct under s 139E of the National Law. NCAT did not make a finding as to the cause of the patient’s death but simply recorded what Hornsby Hospital’s assessment stated. NCAT has dealt only with “stage one” of the proceedings.
Held (Dismissing the further amended summons with costs):
(i) Mr Luo alleged that NCAT made 13 errors which, in summary, claim that NCAT exceeded its jurisdiction, made findings of fact for which there was no evidence, failed properly to consider his submissions and failed to afford him procedural fairness. The Court held that many of these alleged errors of law reveal no real question of law and are better described as alleged errors of fact. Mr Luo did not apply for leave to appeal in relation to any of his grounds.
(ii) The Court was willing to accept that the alleged errors 8, 11, 12 and 13 raised questions of law. Mr Luo raised a no evidence ground in relation to errors 8 and 11. Error 12 alleged that NCAT misinterpreted the proper meaning of “notify” in s 130 of the National Law. Error 13 alleged that Mr Luo was denied procedural fairness. Leave was not required for Mr Luo to appeal in relation to those issues.
(iii) In relation to error 8 that alleged that there was no evidence before NCAT as to the professional standard expected of Mr Luo, the Court held that this appeal ground must fail because NCAT was entitled to rely, and did rely, on Dr Ee’s expert opinion that Mr Luo’s conduct fell significantly below professional standards. Mr Luo also claimed that NCAT overlooked his submissions however the Court noted that Mr Luo’s oral and written submissions in NCAT were “generally difficult to follow and obscure” and this allegation was wrong as NCAT had specifically referred to and described the submissions as being “irrelevant and unhelpful”.
(iv) Errors 11 and 12 overlap as they concern NCAT’s finding that Mr Luo failed to notify the “National Board” of his criminal manslaughter charge within 7 days of it being brought under s 130 of the National Law. The HCCC’s position is that Australian Health Practitioner Regulation Authority (AHPRA) is the “National Board”, whereas Mr Luo’s position is that the Chinese Medicine Board of Australia is the relevant entity. The Court considered that the Chinese Medicine Board of Australia was the correct “National Board” under s 130 (see [174] to [180]). It was noted that NCAT “glossed over this issue” and did not state who the National Board was for the purpose of s 130. Nevertheless, Mr Luo did not provide any evidence that he had notified any National Board. The Court held that NCAT, the HCCC and Mr Luo have misconstrued s 130, however the error was not considered material.
(v) In relation to error 13, Mr Luo’s further amended summons and submissions provided no support for his claim that he was denied procedural fairness in NCAT. Therefore, the complaint in relation to error 13 fails. | Conway v Sun [2025] NSWSC 1135 29 September 2025 – Walton J
In sum: By way of Summons to the Supreme Court seeking judicial review, the plaintiffs (tenants) sought to set aside NCAT’s orders after they withheld rent pending repairs to their rental accommodation. The Court found that there was a “serious question to be tried” concerning NCAT’s jurisdiction to make orders terminating their residential tenancy agreement and giving vacant possession of the premises in circumstances where there were District Court proceedings on foot. Walton J granted the relief subject to conditions requiring payment of all arrears and ongoing full rent.
Facts: In June 2024, the plaintiff in these proceedings entered into a residential tenancy agreement with defendants (the landlords) with rent payable at $5,000 per week. On 19 August 2024, the plaintiff filed a Tenancy and Social Housing Application (“the application”) with NCAT seeking an order for a reduction in rent to $3,000 per week until the landlords completed repairs so that the property would reach the standard on which the lease was negotiated. In February 2025, those proceedings were transferred to the District Court by NCAT’s own motion because the amount claimed exceeded the maximum amount for consumer claims under the Fair Trading Act 1987 (NSW) and under the Australian Consumer Law. On 1 July 2025, the plaintiff filed a statement of claim with the District Court seeking similar orders and pleaded that the landlords had refused to carry out repairs.
On 23 July 2025, the agent for the landlords issued a Notice to Terminate Tenancy Agreement due to the non-payment of rent with NCAT. Orders were made which essentially required the tenants to vacate the premises by 3 November 2025. There were two main aspects to that decision. First, that NCAT was purportedly the only forum in NSW that could make the orders sought by the landlords under the Residential Tenancies Act 2010 (NSW). Secondly, NCAT was aware of the existence and subject of the District Court proceedings and rejected the plaintiff’s submission that NCAT ceased to have jurisdiction under Pt 5 cl 5(7) of Sch 4 to the NCAT Act.
By an amended Summon filed on 16 September 2025, the plaintiffs sought final relief in the form of (i) NCAT’s orders be set aside; (ii) relief against forfeiture of the residential tenancy agreement; and (iii) the defendants pay the plaintiffs costs of the proceedings. Interim relief was sought in the form of a stay of NCAT’s orders and a restraint on NCAT making any further orders concerning the residential tenancy agreement.
Held (Granting the plaintiffs the relief sought and ordering the plaintiffs to prepare the Short Minutes of Order):
(i) The Court held that there was a proper basis to grant the relief against forfeiture sought by the plaintiffs, subject to certain conditions. The defendant’s agent had attempted to identify alternative rental properties said to be suitable for the plaintiffs however the Court noted some fundamental considerations, including that the plaintiffs have three teenage children, one undertaking the HSC, and they attend a school within walking distance of the premises. It was noted that there appeared to be some real issues with available alternative accommodation, notwithstanding the plaintiffs’ pedantry. In those circumstances, the balance of convenience favoured the plaintiffs.
(ii) In relation to the rent arrears, it was the plaintiffs’ evidence that rent had been withheld given the claim for damages and the concern that the defendants may not have funds to meet the plaintiffs’ claim. They however submitted that, for the period in which rent had not been paid and on an ongoing basis until the dispute is resolved in the District Court, they would be content to pay a sum of $3,000 per week (an amount based on “expert evidence” of rental costs in the area) to the defendants and the balance paid into Court. Senior Counsel for the plaintiffs conceded that they would be prepared to pay the whole sum of rent due in order to obtain relief against forfeiture. The Court did not consider the plaintiffs’ first proposed approach to be adequate and found that the proper resolution of the issues required payment of the entire sum of the rent for the period in which the rent or full rent was not paid and make ongoing payment of the rent. | GHZ v Commissioner of Police, New South Wales Police Force [2025] NSWSC 1091 23 September 2025 – Harrison AsJ
In sum: The NSW Police Force (NSWPF) filed a notice of motion seeking that the Supreme Court refuse to conduct judicial review of a decision of NCAT (at first instance). That decision had affirmed the NSWPF’s decision not to delete a record from the Computerised Operational Policing System (COPS) that recorded that GHZ had been charged but not convicted as there was “no prima facie case” in relation to two counts of common assault. The Supreme Court held that GHZ should have first appealed the decision to the NCAT Appeal Panel and if that had failed, then sought leave for judicial review in the Supreme Court. The judicial review application was dismissed as the Court of Appeal said in Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] and [30] and pursuant to s 34(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) as GHZ has an administrative right of appeal to the Appeal Panel pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Facts: As at 2021 GHZ operated a business which included taking photographs of families and children, especially newborn babies. She was charged, but not convicted, with two counts of “common assault” following an incident that occurred at her photography studio. In November 2023, the two charges were dismissed as the Local Court found that there was “no prima facie case”. GHZ’s complaint arises out of the COPS database. That database records the fact that she was charged with the two offences and that she was not guilty. She has sought to have the existence of the fact that she was charged expunged or deleted. She says that she should not have been charged.
In March 2024, GHZ lodged an application in NCAT for an internal review under s 53 of the PPIP Act in relation to the Local Court proceedings against her. In April 2024 the NSWPF Criminal Records team clarified that they may disclose all criminal charges for working with children checks, however the charges would not be disclosed for a National Police Check in relation to general employment (see s 5C of the Child Protection (Working with Children) Act 2012 (NSW)). As the internal review application was not completed within 60 days, GHZ was entitled to lodge a review application to NCAT under s 55 of the PPIP Act. In June 2024, NCAT ordered the matter be returned for reconsideration. In the reconsideration decision, the NSWPF found that the collecting, recording and storage of GHZ’s personal information (her criminal history in the COPS database) was not undertaken in connection with the exercise of the NSWPF's administrative or educative functions, meaning the exemption in s 27(1) of the PPIP Act applied and there had been no breach of privacy. In December 2024, NCAT reviewed and largely adopted the NSWPF’s decision. The Senior Member decided that “no further action” was required.
Held (Dismissing the application for judicial review because GHZ has a right of appeal to the Appeal Panel pursuant to s 80 of the NCAT Act):
(i) As this was a judicial review application under the PPIP Act, there is no opportunity for the appellant to attack the validity of the charges laid against her in the Local Court proceedings. As such, the relief sought by GHZ was not available. Her Honour noted that GHZ could have appealed to the NCAT Appeal Panel and as such s 34(1) of the NCAT Act is applicable. Following the Court of Appeal in Makowska v St George Community Housing Ltd [2022] NSWCA 5 at [28] and [30] and dismissed GHZ’s summons. | Blooms the Chemist Management Services Ltd v Pharmacy Council of NSW [2025] NSWSC 1211 16 October 2025 – Rothman J
In sum: Despite an appeal to the NCAT Appeal Panel pending, the plaintiff (Blooms) sought a declaration that the registration of a proposed financial interest in the second respondent’s pharmacy business would not cause it to obtain a restricted financial interest for the purposes of Sch 5F to the Health Practitioner Regulation National Law (NSW). On the current state of the evidence, as a result of the relationship between the second respondent and Blooms, including in a loan agreement, the Supreme Court held that Bloom would obtain an indirect financial interest in the eventual sale price (as dependent on profits and the increasing price of pharmacies) of the pharmacy. The Court exercised its discretion not to make the declaration sought. The Summons was dismissed with costs.
Facts: The declaration sought relates to the registration of a pharmacy, Blooms. The Pharmacy Council of NSW (the Council) refused an application from the second defendant, Tran Pharmacy (Cronulla South) Pty Ltd, to register its interest in Blooms because it would cause Blooms to acquire a financial interest in the business. The provisions of clause 3 of Sch 5F to the National Law prohibit the carrying on of a pharmacy business unless the premises have been approved by the Council and all holders of a financial interest in the pharmacy business are registered. A breach of the provision is a criminal offence, carrying a maximum penalty of 50 penalty units (a penalty unit is $110). Clause 5 of Schedule 5F to the National Law restricts persons who may have a financial interest in a pharmacy business. Without summarising all those persons who may have such a financial interest, Blooms is not a person who is entitled to have a financial interest in a pharmacy business (cl 5 of the Schedule). The Council issued its decision refusing the application in March 2023 and in May 2023, an internal review affirmed the decision. In June 2023, Tran Pharmacy applied to NCAT for a review of the Council’s decision. Those proceedings have been adjourned by consent.
Held (Judgment for the Council, dismissing the summons with costs):
(i) The question for the Court to answer was whether the various arrangements between Blooms and Tran Pharmacy were caught by the National Law and would give Blooms a financial interest, with the result that it cannot be registered. The second issue was whether the arrangement also caused Tran Pharmacy to be ineligible for registration. His Honour noted that this was a question of fact and degree. As Blooms has a financial interest in the sale price of the Pharmacy, the Court found that it has an indirect financial interest.
(ii) The application did not request the quashing of the decision of the Council. An appeal to NCAT was pending pursuant to the National Law and the NCAT Act. If this application was granted, or refused, on the merits there may potentially be inconsistent judgments of the Supreme Court and NCAT. The Council’s decision has effect under the statute and is binding until it is quashed and it would be a criminal offence for Tran Pharmacy to operate or have an interest in the Pharmacy Business, if it continued in the current relationship with Blooms.
(iii) The Court noted that the Council is entitled to utilise its own expertise and NCAT, likewise, is entitled to exercise any relevant expertise in these cases. The evidence in relation to the sale price and market associated with interests in pharmacies and, in particular, interests in Blooms Pharmacies, was incomplete in the proceedings. The Court exercised its discretion not to issue the declaration sought by Blooms. | Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174 8 October 2025 – Stern J
In sum: The Supreme Court refused leave to appeal a decision of an Appeal Panel of NCAT, finding that the Appeal Panel did not err in making an order to set off what was owed to the builder in a separate arrangement under s 10 of the Home Building Act 1989 (NSW) (HB Act). The Court held that there was no reasonably available construction of s 10 of the HB Act that would preclude the Appeal Panel upholding the set off.
Facts: The plaintiffs obtained an owner-builder permit under the HB Act and then entered into a contract, allegedly to carry out a range of building works with the defendant. The plaintiffs brought a claim in NCAT for breach of warranties under s 18B of the HB Act and for negligence and breach of the statutory duty of care in s 36 of the Design and Building Practitioners Act 2020 (NSW). The defendant denied entering into the alleged contract and contended that the agreement was that it would order building products and undertake labour hire on behalf of the plaintiffs in circumstances where the plaintiffs retained their obligations to supervise and manage the works. The defendant also submitted that monies were owed to it under that arrangement that was not regulated by the HB Act and sought for the amount to set off any damages ordered against it.
The plaintiffs’ claim was dismissed at first instance. NCAT considered that the only residential building contract (falling under the Act) between the plaintiffs and the defendant was for the defendant to perform limited waterproofing works, which was found to be defective, leading to losses of $25,595.76. NCAT rejected the defendant’s contention that the arrangement was for goods and labour hire, however also found that it was entitled to set off the sum of $30,000, being “the lowest amount” that the plaintiffs had conceded they owed to the defendant. An Appeal Panel refused leave and otherwise dismissed the appeal.
Held (Refusing leave to appeal and dismissing the Summons):
(i) The Court observed the established principles in relation to the grant of leave in Dokas v Gallagher (No 2) [2024] NSWCA 236 at [66] and noted that leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what [is] merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. In refusing leave to appeal, the Court held that the plaintiffs’ contentions did not go beyond what was merely arguable, there was no reasonably clear injustice, nor was any matter of public importance raised.
(ii) With regard to the plaintiffs’ contention that the Appeal Panel adopted an incorrect interpretation of ss 7, 10 and 92 of the HB Act in relation to the set off, the Court of Appeal (and the Appeal Panel) rejected this argument and found that “[t]here is no reasonably available construction of s 10 of the [HB] Act that would preclude the Tribunal upholding the set off”. The set-off was based on a separate contractual arrangement outside the Act’s scope and that s 10 did not apply because the set-off was not enforcing a remedy for breach of a residential building contract. The Court also held that it was also open to the Appeal Panel to make a factual finding, based upon the plaintiffs’ concession, that they owed the defendant $30,000. | Adams v Commissioner of Police, New South Wales Police Force [2025] NSWSC 1181 9 October 2025 – Griffiths AJ
In sum: In an application for judicial review of an Appeal Panel decision, the Supreme Court analysed cl 1(d) of the Table in s 14 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) in regard to whether a potential wrongdoer should have the benefit of the public interest consideration against disclosure of information for informants. Noting that the word “informant” does not appear in cl 1(d) and in contrast to cl 2(a) where express reference is made to the public interest consideration against disclosure if disclosure of information would tend to reveal the identity of “an informant”, the Supreme Court found that the text, context and purpose of the GIPA Act did not support Mr Adams’ preferred construction of the Table in cl 1(d).
Facts: On 27 June 2023, police attended an internet café in response to a report by Mr Adams that he had discovered a security camera in the male bathroom at the café. NCAT affirmed a decision by the Commissioner of Police (after an internal review) relating to Mr Adams’ application under the GIPA Act for access to a three-page police report in relation to police attendance at the café (COPS Report). The Commissioner had granted access to large parts of the COPS Report, but there were several redactions which Mr Adams did not accept. On 21 March 2025, an Appeal Panel dismissed both an application for leave to appeal and an appeal from the NCAT decision. Mr Adams now seeks judicial review of the Appeal Panel decision.
Held (Rejecting Mr Adams primary contentions, dismissing the summons with no order as to costs):
(i) Griffiths AJ noted that Mr Adams had a statutory right of appeal to the Supreme Court on a question of law, but only with leave (s 83(1) of the NCAT Act) and that in effect, Mr Adams had avoided the requirement of leave by commencing a judicial review challenge. However, the Court has a well established discretion to refuse relief in a judicial review proceeding where the Court considers there is an alternative remedy available under s 34(1)(c) of the NCAT Act (see also Fong BHNF Fong v Weller [2024] NSWCA 46 at [29] per Kirk JA). His Honour considered that this case was “borderline”, however Mr Adams case raised an issue of statutory construction regarding cl 1(d) in the Table in s 14 of the GIPA Act, on which there appeared to be no existing court authority. His Honour exercised the discretion to refuse to conduct a judicial review of the decision under s 34(1)(c) of the NCAT Act. (ii) The Court rejected Mr Adams’ argument that cl 1(d) of the Table in s 14 of the GIPA Act should be construed to deny protection where the person is an alleged wrongdoer. Although cl 1(d) does not use the word “informant” (in contrast to cl 2(a), which expressly refers to informants), the Court found that the text, context, and purpose of the Act did not support Mr Adams’ preferred interpretation. His Honour also found that there is nothing in cl 1(d) that requires determination of whether the person whose name has been redacted was an innocent informant as opposed to a wrongdoer. | Rowley v Charles Sturt University [2025] NSWSC 1092 23 September 2025 – Walton J
In sum: Mr Rowley seeks to challenges NCAT’s decision to refuse leave to proceed to a hearing under s 96(1) of the Anti-Discrimination Act 1977 (NSW) in a judicial review application. By way of notice of motion, Mr Rowley sought orders granting leave for all parties to give oral evidence and for cross examination to be permitted for all potential witnesses, being various employees of Charles Sturt University, at the substantive hearing in February 2026. The Court held that Mr Rowley’s motion was “quite evidently directed to that which is impermissible for the purposes of judicial review, namely, merit review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 326-335 (per Mason CJ)”. The notice of motion was misconceived, and, in the circumstances, Mr Rowley was not able to ventilate his concerns in this manner. The notice of motion was dismissed.
Held (Dismissing the notice of motion):
(i) The motion was fixed upon the question of the provisions of r 59.7(3) of the Uniform Civil Procedure Rules 2005 (NSW), as his attention was directed to leave being given to cross-examine. The Court noted that the motion was predicated on the basis that potential witnesses would be called by subpoena (and who would not give evidence by affidavit). It was evident from Mr Rowley’s submissions and his affidavit in support of the motion, that the motion and the subpoenas were directed at the merits of his underlying complaint of discrimination rather than whether there is any error of law in the Appeal Panel’s decision. The Court found that the motion misapprehended the “true nature of the judicial review proceedings and thereby [sought] to introduce irrelevant considerations to those proceedings”. In all the circumstances, the motion was dismissed. | | 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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