NCAT Appeal Panel Decisions Digest Issue 5 of 2022 |
The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel. Each case title is hyperlinked to the full decision available on NSW Caselaw.
This issue features summaries of the following Appeal Panel decisions handed down in May 2022:
King v NSW Land and Housing Corporation [2022] NSWCATAP 165: The decision of the Tribunal to terminate a social housing lease, without taking into consideration the personal circumstances of the tenant and the effect a termination order would have, was set aside by the Appeal Panel. It was held that both ss 87 and 154E, Residential Tenancies Act 2010 are mandatory considerations for making a termination order.
Hometown Australia Lennox Pty Limited v Debra Bullivant [2022] NSWCATAP 161: A community operator did not meet the definition of “home owner” where the agreement for sale was made prior to a site agreement. As such, s 109 (requiring site agreements to be valued at a fair market value) did not apply to the purchase.
FFO v Cumberland Council [2022] NSWCATAP 164: The Appeal Panel refused to prohibit the disclosure of the applicant’s evidentiary material, prior to an administrative review hearing. It held that such an order would be a misuse of the powers under s 64 Civil and Administrative Tribunal Act 2013.
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1. Was the Tribunal to take into account “all relevant circumstances,” including s 87 Residential Tenancies Act 2010 when considering the termination of a social housing lease? |
King v NSW Land and Housing Corporation [2022] NSWCATAP 165 Consumer and Commercial Division A Suthers, Principal Member; J Currie, Senior Member
In sum: The Appeal Panel set aside the decision of the Tribunal, which terminated a social housing lease due to breaches made by the tenant. It was held the Tribunal made an error of law in failing to take into account “all relevant circumstances” which could affect a tenant’s ability to comply with the lease in s 87 Residential Tenancies Act 2010, not just the mandatory considerations under s 154E.
Facts: The appellant (Ms King) had been a tenant of social housing since April 2020. Ms King has a longstanding diagnosis of schizophrenia and a comorbid alcohol use disorder (which exacerbates psychotic symptoms such as auditory hallucinations). She was subject to a Community Treatment Order under the Mental Health Act 2007, the purpose of which is to assist persons who are vulnerable to relapse, to keep well and integrated in the community. In December 2020, the NSW Land and Housing Corporation (LAHC) issued a termination notice upon Ms King, citing numerous breaches of her obligation to refrain from causing nuisance and not to interfere with the reasonable peace or comfort from neighbours (pursuant to s 87 and 154C(9)(b) Residential Tenancies Act 2010 (RTA)). An application was made by the LAHC to the Tribunal, requesting the termination of Ms King’s tenancy, based on those breaches. It was ordered that Ms King’s tenancy was to be terminated “immediately” and possession of the premise to be given to LAHC. Ms King appealed, citing legal errors in the decision.
Held (allowing the appeal):
(i) When considering a termination order for social housing, both “the tenant’s circumstances and the effect of termination on the tenant are mandatory considerations” per s 87(4) and (5) RTA. Kelly v NSW Land and Housing Corporation [2018] NSWCATAP 154 was referred to, which held; prior to making a termination order, the Tribunal must be “cognisant” that social housing tenants “suffer circumstances of personal hardship” and that relevant circumstances under s 87 are to be considered in the context of why a social housing tenant may be breaching their obligations. Where a Tribunal is to exercise its discretion to make a termination order, consideration must be given to s 154E, however “it is not restricted” to only those requirements. Rather, “[a]ll the circumstances of the case must be considered.” Whilst this has broad import, it included considerations such as the tenant’s circumstances of personal hardship. The task of the Tribunal is to weigh whether the tenant’s breach is sufficient to warrant a termination order, in light of those circumstances. Consequent of this, it was held that Ms King’s breach may have been impacted by her diagnosed mental health conditions (at [35], [36], [37]). (ii) The Tribunal below erred by failing to consider the mandatory considerations in s 87 RTA. Where s 154E focuses predominantly on the impact of the tenancy on others, prior tenancy arrangements or the tenant’s compliance with other orders, these could not be taken to be the only relevant considerations for tenants in social housing. Consequently, the Tribunal erred when it placed little determinative weight on the evidence of Ms King’s substantial mental illness or her steps to address the conduct which caused the breach. Ultimately, the considerations in s 154E needed to be considered and balanced with all other relevant factors when making a termination order. The analysis and treatment of the evidence concerning Ms King did not “demonstrate a proper, genuine and realistic consideration,” of the relevant mandatory considerations in both ss 87 and 154E RTA, thereby falling into an error of law (at [9], [43], [44], [45], [49], [51], [52]). (iii) The appeal was upheld, and the Tribunal’s decision was set aside: [52]. |
2. Was a Community Operator who entered into a sale agreement deemed a “former home owner” for the purpose of Part 10 Residential (Land Lease) Communities Act 2013 (NSW)? If yes, were they bound to maintain site fees at a “fair market value”? |
Hometown Australia Lennox Pty Ltd v Debra Bullivent [2022] NSWCATAP 161 Consumer and Commercial Division S Thode, Senior Member; A Lo Surdo SC, Senior Member
In sum: The Tribunal made an error of law, when it found that s 109 Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act), applied to the sale agreement between the appellant (Hometown) and the prospective purchaser. The Appeal Panel held that Hometown did not satisfy the definition of “home owner” per s 4 of the RLLC Act, therefore none of the provisions in Part 10 (which regulate sales of community homes for persons with site agreements at the time of purchase) were engaged.
Facts: Hometown operates a residential land lease community in Lennox Head (Community). On 4 November 2020, Hometown acquired a home in the Community (Site 4). On 5 March 2021, Ms Bullivant entered into a sale agreement to purchase Site 4 from Hometown. A day later, she entered into a site agreement with Hometown in respect of Site 4 which granted a right of occupancy at a rate of $192 a week. Ms Bullivant sought orders from the Tribunal, pursuant to s 157(1) of the RLLC Act, asserting that Hometown, as the community operator, was to comply with its obligation to set fees for the site at fair market value. Section 109(6) establishes how fair market value is to be assessed for sites within the Community. Consequently, Ms Bullivent sought compensation for the difference between fair market value and the site fees she paid under the site agreement. The critical issue was whether Part 10 of the RLLC Act applied to the purchase of Site 4. This would determine; whether Hometown fell within the meaning of “former home owner” in s 104 and whether an order for site fees to be set at a fair market value under s 109 was engaged. The Tribunal found in favour of Ms Bullivant, finding Part 10 applied with respect to Site 4 and the site fees exceed market value and ordered a reduction in site fees. Hometown appealed this decision, contending that Part 10 is excluded from the sale of a home by a community operator as the site agreement was entered into after the sale agreement.
Held (allowing the appeal): (i) For s 109 to apply, Hometown had to satisfy the criteria of “former home owner” as determined by s 104, RLLC Act. Crucially, the term “former home owner” was undefined in the RLLC Act. The term should be afforded its ordinary grammatical meaning; that is, a reference to a person who was a previous or prior “home owner;” which is a person subject to a site agreement, who has gained a beneficial interest from a person subject to a site agreement or is a successor in title of a person subject to a site agreement (s 4 RLLC Act). (ii) In further construing the term “home owner,” the Appeal Panel referred to the object and purpose of Part 10, which was to provide simple and effective process to sell sites within the Community. Consistent with that object, s 109 seeks to facilitate the sale of a home by the home owner, by capping the site fees which an operator is permitted to charge and stipulates that site fees for a new site agreement “must not exceed fair market value” as per s 109(5). Those homes, as the definition of “home owner” makes plain, are the subject of site agreements with Community operators. (iii) Absent a site agreement at the time of purchase, Hometown was precluded from being a “home owner” or a “successor in title” per s 4(a) and (c) RLLC Act. Therefore, despite owning Site 4 prior Ms Bullivent’s purchase, Hometown failed satisfy any of the terms for “home owner” for the purpose of Part 10 and was not subject to the provisions of s 109 to charge site fees at “fair market value.” The appeal was allowed and the decision under appeal set aside (at [24], [25], [26], [38]). |
3. Prior to an administrative review hearing, did the Appeal Panel have the power under s 64 NCAT Act to restrict the disclosure of the applicant’s evidentiary material for “privacy reasons”? |
FFO v Cumberland Council [2022] NSWCATAP 164 Administrative and Equal Opportunity Division Judge Cole; Deputy President; I Coleman SC ADCJ, Principal Member
In sum: The Appeal Panel refused leave to appeal in circumstances where the appellant (FFO) sought to restrict the respondent’s (Council) access to his evidentiary material prior to the hearing. The Appeal Panel held that granting a publication restriction order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) would be inappropriate and would constitute a misuse of power if the Tribunal interfered with the Council’s preparation for review. Absent any merit to the appeal or a question of law, the Appeal Panel also refused an application for an extension of time to file the appeal.
Facts: On 12 July 2021, FFO made an application to the Tribunal, under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) where the Council was the respondent. Prior to the hearing, FFO applied for orders from the Tribunal under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), seeking an order prohibiting the disclosure of his legal arguments and all his evidence to officers of the Council. FFO also sought an order prohibiting the disclosure of certain bundles of evidence to the General Counsel for the Council, on the belief that his personal information should not be disclosed without careful consideration, security safeguards to protect it from misuse and without his knowledge or consent. On 21 December 2021, FFO’s application for orders under s 64(1)(d) of the NCAT Act was dismissed. Pursuant to s 80(2)(a) of the NCAT Act, FFO required leave to appeal the Tribunal’s interlocutory decision to dismiss the application for non-disclosure orders. Held (dismissing the appeal):
(i) Leave to appeal should only be granted when there are substantial reasons to allow an appellate review. This would ordinarily include an error of principle at first instance, resulting in substantial injustice. FFO’s primary submission focused on the request for an order under s 64(1)(d) of the NCAT Act to “safeguard” against the misuse of his personal information. Relevant to the exercise of the discretion to make a non-disclosure order is the presumption in favour of open justice. The Tribunal held this was particularly relevant to hearing matters under the PPIP Act, to the extent that those principles require processes that are open and transparent (per s 3(f) PPIP Act) (at [9], [46]). (ii) The Tribunal had neither an obligation nor the power to supervise the preparation of an agency’s case before it in the manner sought by FFO. The purpose of the Council having possession of the information in question was to prepare for the administrative review to be conducted by the Tribunal, necessitated by FFO’s application. In these circumstances there is no requirement for the Council to inform FFO or seek his consent when making use of the information to prepare its case. FFO can only expect such ‘security safeguards’ as the PPIP Act provides for. (iii) It would be inappropriate, and a misuse of s 64 of the NCAT Act, for the Tribunal to interfere in the Council’s preparation for the review in the manner FFO suggested. Ultimately, no error of law was identified by the Appeal Panel with respect to this issue or any of the other “grounds” raised by FFO. Consequently, FFO’s application for an extension of time within which to file an appeal was also refused (at [53], [54]). |
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Quader v Nguyen [2022] NSWCATAP 128 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; G Ellis SC, Senior Member Catchwords: APPEAL – error of law – failure to consider claim for compensation – no substantial miscarriage of justice may have been suffered – leave to appeal refused |
Ali v Smith [2022] NSWCATAP 129 Consumer and Commercial Division – Motor Vehicles Decision of: S Thode, Senior Member; D Goldstein, Senior Member Catchwords: CONSUMER LAW – sections 79O and 79U of the Fair Trading Act 1987 – estimate of amount owed where precise evidence is not available |
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Tisdale v Cumberland City Council (No 2) [2022] NSWCATAP 132 Administrative and Equal Opportunity Division Decision of: D Robertson, Senior Member; Emeritus Prof G Walker, Senior Member Catchwords: ADMINISTRATIVE LAW – Access to government information – Review of decision to refuse access – Agency relying upon confidential evidence not disclosed to the applicant – Procedural fairness – Government Information (Public Access) Act section 107 – Not inconsistent with requirements of procedural fairness for Tribunal to act on basis of confidential evidence |
Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Consumer and Commercial Division – Motor Vehicles Decision of: G Sarginson, Senior Member; D Ziegler, Senior Member Catchwords: APPEALS – Procedural fairness – adequacy of reasons – CONSUMER LAW – Consumer guarantees – action against manufacturer – guarantee as to due care and skill – guarantee as to fitness for a particular purpose – guarantee as to compliance with express warranty – CONSUMER LAW – Enforcement and remedies – remedies against manufacturer – whether a work order can be made against a manufacturer
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Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 Consumer and Commercial Division – Motor Vehicles Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: CONSUMER LAW – alleged defective work done on second-hand motor vehicle engine-claim by consumer for the total sum paid for the work was misconceived – APPEALS – respondent’s documents served late and only received on the morning of the hearing-no offer of adjournment from the Tribunal – procedural unfairness-appellant did not show there was a possibility of his claim succeeding – attempt by appellant to present on appeal a new case of defective work based upon further investigation by experts after the Tribunal decision-reliance on new evidence not permitted |
ZYK v Soo [2022] NSWCATAP 135 Consumer and Commercial Division – Residential Tenancies Decision of: G Ellis, SC, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – internal appeal – application for an extension of time in which to appeal an interlocutory decision of the Tribunal not to issue summonses refused – leave to appeal an interlocutory decisions granting an extension of time refused – leave to appeal a decision that a 90 day no reason termination notice was not retaliatory refused – appeal dismissed |
Cossalter v Morgan [2022] NSWCATAP 136 Consumer and Commercial Division – Residential Tenancies Decision of: R C Titterton OAM, Senior Member; P H Molony, Senior Member Catchwords: APPEALS – appeals from interlocutory decisions – leave required – appeals on questions of law – appeals where leave required – no question of principle |
Reid & Robinson Builders Pty Ltd trading as John Robinson Elite Constructions v Cleal [2022] NSWCATAP 137 Consumer and Commercial – Division Home Building Decision of: I R Coleman SC ADCJ, Principal Member; J S Currie, Senior Member Catchwords: COSTS – Party/Party – Appeals – where Appellant unsuccessfully challenged interlocutory order transferring proceedings to District Court – whether s 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38A of the Civil and Administrative Tribunal Rules 2014 governed application for costs of the appeal – held that Rule 38A applied – unsuccessful Appellant ordered to pay Respondent’s costs |
Madziala v Commissioner of Police [2022] NSWCATAP 138 Administrative and Equal Opportunity Division Decision of: R Dubler SC, Senior Member; E Bishop, Senior Member Catchwords: APPEAL – Administrative review – application for firearms licence – whether in public interest – application for extension of time in which to appeal – application for leave to appeal – error of law |
Nguyen v Ryan [2022] NSWCATAP 139 Consumer and Commercial Division – Residential Tenancies Decision of: K Ransome, Senior Member; E Bishop, Senior Member Catchwords: APPEAL – residential tenancy – claim by tenant for reimbursement of cost of urgent repairs – no error of law – no substantial miscarriage of justice – leave to appeal refused |
Knobloch v Curtis; Curtis v Knobloch [2022] NSWCATAP 140 Consumer and Commercial Division – Home Building Decision of: L Wilson, Senior Member; S Goodman, Senior Member Catchwords: BUILDING AND CONSTRUCTION – Contract Interpretation – Question of law – Right to suspend for non-payment progress payment – No error of law Appeal – Adequacy of reasons |
Marcus v Carroll [2022] NSWCATAP 141 Consumer and Commercial Division – General Decision of: P Durack SC, Senior Member; D Goldstein, Senior Member Catchwords: CONSUMER LAW – supply and installation of timber flooring-alleged misleading and deceptive conduct, misleading representation and breach of contract – APPEALS – material photographic evidence not addressed – error of law in respect of one of the appellant’s claims only – leave to appeal – plain error such that it would be unjust to allow important finding to stand in respect of one of the appellant’s claims only – leave to appeal not granted on the basis of new evidence |
Davis v Seachange Living NSW Pty Ltd [2022] NSWCATAP 142 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; G Furness SC, Senior Member Catchwords: LEASES AND TENANCIES – Legislation protecting tenants – Residential (Land Lease) Communities Act 2013 (NSW) – Whether the Tribunal has jurisdiction to determine a collective application where the application for mediation had not been signed by the required percentage of home owners – Whether the increase in site fees notified by the operator was excessive |
Bradford v Commissioner of Police (No 2) [2022] NSWCATAP 143 Administrative and Equal Opportunity Division Decision of: I R Coleman SC ADCJ, Principal Member; T Simon, Principal Member Catchwords: APPEAL – questions of law – making a finding of fact for which there is no evidence – meaning of giving “proper, genuine and realistic consideration” to a matter – STATUTORY INTERPRETATION – meaning of s 75 of Government Information (Public Access) Act 2009 |
Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; C Mulvey, Senior Member Catchwords: APPEALS – Constructive failure to exercise jurisdiction – Procedural fairness – Failure to take into account relevant considerations – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Availability of retaliatory notice as a defence to an application for termination based on a no grounds termination notice |
Zahra v Baker [2022] NSWCATAP 145 Consumer and Commercial Division – Residential Tenancies Decision of: S Thode, Senior Member; AR Boxall, Senior Member Catchwords: APPEALS – LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Remittal |
Norkin v University of New England [2022] NSWCATAP 146 Administrative and Equal Opportunity Division Decision of: Hennessy ADCJ, Deputy President; Dr R Dubler SC, Senior Member Catchwords: ADMINISTRATIVE LAW – Government Information (Public Access) – whether the Tribunal erred in law in declining to grant access – whether the Appellant was denied procedural fairness |
Coscuez International Pty Ltd v The Owners – Strata Plan No 46433 [2022] NSWCATAP 147 Consumer and Commercial Division – Strata Schemes Decision of: The Hon D Cowdroy AO QC ADCJ, Principal Member; G Sarginson, Senior Member Catchwords: LAND LAW – Strata title – Whether common property rights by-law unreasonably refused – Whether Tribunal has power to make certain money orders under s 232 of the Strata Schemes Management Act 2015 (NSW) – Whether by-laws of strata scheme harsh, unconscionable or oppressive-Adequacy of reasons – Consideration of applicable principles |
de Tarle v Newland [2022] NSWCATAP 148 Consumer and Commercial Division – Strata Schemes Decision of: S Thode, Senior Member; P H Molony, Senior Member Catchwords: APPEAL – procedural fairness – insufficient time given for party to file submission in reply on issue of costs – appeal allowed – costs issue to be re-determined by Appeal Panel |
Tezel v The Owners – Strata Plan No 74232 [2022] NSWCATAP 149 Consumer and Commercial Division Decision of: The Hon D A Cowdroy, AO QC, Principal Member; G K Burton SC, Senior Member Catchwords: STRATA MANAGEMENT – loss of lot owner as a result of failure of owners corporation to repair water leaks – whether lot owner’s claim was statute barred – Strata Schemes Management Act 2015 (NSW) s 106(1), (2), (4), (5), (6) |
Newport v Pittman [2022] NSWCATAP 150 Consumer and Commercial Division – Strata Schemes Decision of: The Hon D A Cowdroy, AO QC, Principal Member; G K Burton SC, Senior Member Catchwords: STRATA MANAGEMENT – smoking – claim of breach of Strata Schemes Management Act 2013 (NSW) s 153 – re-determination – onus of proof |
Tsung v Johnson [2022] NSWCATAP 151 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – identifying the wrong issue or asking the wrong question – constructive failure to exercise jurisdiction – procedural fairness – failure to take into account relevant considerations – failure to provide proper reasons |
The Owners – Strata Plan No 79633 v Graorovska [2022] NSWCATAP 152 Consumer and Commercial Division – Strata Schemes Decision of: G Sarginson, Senior Member; D Ziegler, Senior Member Catchwords: LAND LAW – Strata title – Conduct of hearing – Excessive judicial intervention – Denial of procedural fairness – Applicable principles |
Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd [2022] NSWCATAP 153 Consumer and Commercial Division – Residential Tenancies Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: LEASES AND TENANCIES – Retail leases – Rent review – whether agreement was made to fix rent – whether valuation to determine current market rent under s 31of the Retail Lease Act 1994 was valid – requirement to take into account specified matters – circumstances in which the Tribunal may intervene to declare invalid a determination of rent by appointed valuer |
Sinclair v Camnet Finance Pty Ltd (No 2) [2022] NSWCATAP 154 Consumer and Commercial Division – Residential Tenancies Decision of: G Curtin SC, Senior Member; D Fairlie, Senior Member Catchwords: COSTS – no question of principle LEASES AND TENANCIES – Retail leases – Retail shop lease – meaning of retail shop and retail shop lease – whether a licence is a retail shop lease – relevance of uses by third party where licence grants a non-exclusive right of occupation – LEASES AND TENANCIES – Rent and outgoings – Abatement of rent – Damage to premises – operation of s 36 of the Retail Leases Act 1994 – whether entitlement to abatement of licence fee where premises the subject of a related lease of a restaurant are unusable because of damage |
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Pace v Pratelli (No 2) [2022] NSWCATAP 156 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: COSTS – Party/Party – Appeals – Respondent successful in appeal from the Consumer and Commercial Division – Order that there be no order for costs – Respondent given leave to seek a different costs order – Hearing on the papers – Amount in dispute did not exceed $30,000 – No special circumstances claimed – No basis to make a different costs order |
PPT Investments Pty Ltd v DRE Group Pty Ltd [2022] NSWCATAP 157 Consumer and Commercial Division – General Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: CONSUMER LAW – consumer guarantees – supply of goods – guarantee as to acceptable quality – primary facts or inferences found were incapable of justifying the ultimate finding of fact – question of acceptability a question of fact and degree |
Singh v Lekhwar [2022] NSWCATAP 158 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member; P Durack SC, Senior Member Catchwords: APPEAL – one appellant bankrupt when purported to consent to termination of tenancy – challenge to orders recorded as being made by consent |
Xenos v St George Community Housing Ltd [2022] NSWCATAP 159 Consumer and Commercial Division – Residential Tenancies Decision of: G Blake AM SC, Senior Member; M Gracie, Senior Member Catchwords: APPEAL – Application for extension of time to lodge appeal – No proper explanation for delay – No fairly arguable error of law or other error requiring leave to appeal – Application dismissed |
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Hometown Australia Lennox Pty Limited v Debra Bullivant [2022] NSWCATAP 161 Consumer and Commercial Division – Residential Communities Decision of: S Thode, Senior Member; A Lo Surdo SC, Senior Member Catchwords: APPEALS – STATUTORY INTERPRETATION – the meaning of home owner under Part 10 of the Residential (Land Lease) Communities Act, 2013 – whether an operator which is an owner of a home in a community is a home owner |
Morissi v Syed [2022] NSWCATAP 162 Consumer and Commercial Division – Motor Vehicles Decision of: The Hon D A Cowdroy AO QC; R C Titterton OAM Catchwords: APPEAL – appeal from commercial and consumer division – sale of motor vehicle – agent acting for undisclosed principal – defective vehicle – purchaser seeking redress – misleading conduct of indoor |
Mayer v Bangar [2022] NSWCATAP 163 Consumer and Commercial Division – Dividing Fences Decision of: G Furness SC, Senior Member; G Burton SC, Senior Member Catchwords: DIVIDING FENCES ACT – negligent damage to dividing fence – order that each pay 50% |
FFO v Cumberland Council [2022] NSWCATAP 164 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; Coleman SC ADCJ, Principal Member Catchwords: APPEALS – Leave to appeal – Principles governing – Extension of Time – Grounds of Appeal |
King v NSW Land and Housing Corporation [2022] NSWCATAP 165 Consumer and Commercial Division Decision of: A D Suthers, Principal Member; J S Currie, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Social housing tenancy – Application for termination order – breach of conditions – cause or permit nuisance, interfere or permit interference with reasonable peace, comfort, privacy of neighbours – where Tribunal applied section 87 to make termination order – question of law – mandatory considerations – personal circumstances of and effect of order on tenant – where potential effects of eviction included destabilisation of tenant’s physical and mental health, relapse of diagnosed psychotic symptoms |
Reid v NSW Land and Housing Corporation [2022] NSWCATAP 166 Consumer and Commercial Division – Residential Tenancies Decision of: S Thode, Senior Member; D Goldstein, Senior Member Catchwords: LEASES AND TENANCIES – withdrawal of services, goods or facilities under s 44 of the Residential Tenancies Act 2010 (NSW) – damages for breach of covenant for quiet enjoyment |
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Hanna v Wei [2022] NSWCATAP 168 Consumer and Commercial Division – Residential Tenancies Decision of: A Suthers, Principal Member; C Fougere, Principal Member Catchwords: APPEAL – Residential tenancy – need for Tribunal to engage with the case of each party – relevance of transcript of hearing at first instance to that assessment |
Lanser v Halycon Super Pty Ltd [2022] NSWCATAP 169 Consumer and Commercial Division – Home Building Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – hearing rule – opportunity to be heard – no such opportunity lost – no question of principle |
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The Owners – Strata Plan 675 v York & Edwards [2022] NSWCATAP 171 Consumer and Commercial Division – Strata Schemes Decision of: P Durack, Senior Member; G Sarginson, Senior Member Catchwords: LAND LAW – strata title – application under s 236 of the Strata Schemes Management Act 2015 (NSW) for an order allocating unit entitlements among the strata scheme lots – consideration of factors other than market values of the lots – APPEALS – exercise of discretionary power – errors of law – taking account of irrelevant considerations |
The Owners – SP 80881 v Gregg [2022] NSWCATAP 172 Consumer and Commercial Division – Strata Schemes Decision of: R C Titterton OAM, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS – errors other than errors of law – no question of principle |
Kaye v The Owners – SP 4350 [2022] NSWCATAP 173 Consumer and Commercial Division – Strata Schemes Decision of: R C Titterton OAM, Senior Member, E Bishop, Senior Member Catchwords: LAND LAW – Strata schemes – Proposed common property rights by-law – Whether unreasonably refused |
Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 174 Consumer and Commercial Division – Retirement Villages Decision of: S Westgarth, Deputy President; M Harrowell, Deputy President Catchwords: COSTS – costs application for proceedings at first instance first made on appeal – appropriateness of Appeal Panel dealing with application – rule 38 – amount claimed or in dispute – usual order for costs – whether indemnity costs should be ordered |
Ghosn v The Owners – Strata Plan No 87837 [2022] NSWCATAP 175 Consumer and Commercial Division – Strata Schemes Decision of: The Hon D A Cowdroy AO QC, Principal Member; L Wilson, Senior Member Catchwords: APPEAL – Strata schemes – claim for appointment of compulsory strata manager resulting from breaches by owners corporation in the administration of a strata scheme – whether Tribunal erred in its discretion to decline to appoint compulsory strata manager |
Ning v Cong [2022] NSWCATAP 176 Consumer and Commercial Division – Residential Tenancies Decision of: The Hon D A Cowdroy, AO QC, Principal Member; J McAteer, Senior Member Catchwords: APPEAL – Retail Leases Act – application of Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 – whether landlord negotiated rent relief – whether failure to negotiate prevented landlord from recovering accrued rent and costs |
Maqableh v Kaklamanis (No 2) [2022] NSWCATAP 177 Consumer and Commercial Division Decision of: S Westgarth, Deputy President; I R Coleman SC ADCJ, Principal Member Catchwords: COSTS – costs of appeal – dispensing with an oral hearing – Rules 38 and 38A |
Kaur v INT Property Group Ltd [2022] NSWCATAP 178 Consumer and Commercial Division Decision of: R C Titterton OAM, Senior Member; C Mulvey, Senior Member Catchwords: APPEALS – errors of law – failure to give adequate reasons – failure to apply correct principle of law |
So v Dou [2022] NSWCATAP 179 Consumer and Commercial Division Decision of: G Curtin SC, Senior Member; C Mulvey, Senior Member Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – fixed term lease for three years entered into prior to 23 March 2020 – abandonment by the tenants – compensation – obligation on the landlord to mitigate the loss – principles applicable to mitigation defence – Tribunal erred in failing to apply applicable principles |
Brazel v Sydney Water [2022] NSWCATAP 180 Administrative and Equal Opportunity Division Decision of: I Coleman SC ADCJ, Principal Member; Dr R Dubler SC, Senior Member Catchwords: APPEAL – government information – whether the Tribunal failed to afford procedural fairness – whether the Tribunal was wrong to make confidentiality orders or conduct or receive confidential evidence – whether the Tribunal was wrong to dispense with a hearing pursuant to s 50(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether error in fact finding – meaning of ‘reveal’ and ‘personal information’ under the Government Information (Public Access) Act 2009 |
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DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
