APPEALS — whether Tribunal erred in dismissing Appellant’s application for review pursuant to Administrative Decisions Review Act 1997 on basis that Appellant failed to identify a reviewable administrative decision in accordance with the Act
Judgment of
I R Coleman SC ADCJ, Principal Member
C Mulvey, Senior Member
Appeal – dividing fence – procedural fairness occasioned by absence of Appellant at first instance hearing – whether order was fair and equitable – order requiring the Appellant to pay the full cost of the new fence
Judgment of
S Westgarth, Deputy President
G Sarginson, Senior Member
REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232. COSTS – costs orders on severable issues - application of s 104 Strata Schemes Management Act 2015 (NSW) – quarantining of costs orders in favour of appellant – appropriate orders with success on primary matter appealed and remitted but not on a severable matter appealed.
Judgment of
S Westgarth, Deputy President
G Burton SC, Senior Member
APPEAL – costs order – denial of procedural fairness – failure to deal with objection to extension of time to make costs application - no opportunity to make submissions
Judgment of
K Ransome, Principal Member
J McAteer, Senior Member
ADMINISTRATIVE LAW – privacy – whether Appeal Panel has jurisdiction to hear an appeal from an order that agency has contravened an Information Privacy Principle and a Health Privacy Principle – whether appeal is moot ADMINISTRATIVE LAW – privacy – meaning of “disclose” in section 18(1) of the Privacy and Personal Information Protection Act 1998 (NSW) – meaning of “disclose” in clause 11 to Schedule 1 of the Health Records and Information Privacy Act 2002 (NSW)
Judgment of
Hennessy ADCJ, Deputy President
J Lucy, Senior Member
APPEALS - procedural fairness - questions of law concerning jurisdiction of the Tribunal – interpretation of Special Condition - decision of the Tribunal upheld.
Judgment of
Balla ADCJ, Principal Member
D A C Robertson, Senior Member
APPEALS- BUILDING AND CONSTRUCTION – renewal – work order not completed – other appropriate orders available on renewal – money order made in accordance with consent orders – no error on a question of law established.
Judgment of
S Thode, Principal Member
D Goldstein, Senior Member
APPEALS — whether the respondent’s application to set aside summonses required leave — nature of application to set aside summonses — adequacy of reasons-procedural fairness — claims of legal professional privilege and waiver-apparent relevance of documents sought by summonses — criteria for relevance-application for recusal — evidence permissible to engage s112 of the Government Information (Public Access) Act 2009(NSW) — adequacy of searches-grounds of appeal lacking sufficient specificity.
Judgment of
S Westgarth, Deputy President
G Ellis SC, Senior Member
LICENCING – firearms licencing – special conditions placed on licence not to use firearms on specific rural land due to its size, shape and location – whether such condition was unlawful or unreasonable
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
LAND LAW – Strata title – Order to remove strata committee member – eligibility of lot owner to be a member of the strata committee as well as building manager – scope of power of Tribunal to make orders under s 24 of the Strata Schemes Management Act 2015 (NSW) – general orders concerning SMS system to notify lot owners of building works and other matters
Judgment of
M Harrowell, Deputy President
S Thode, Principal Member
CONSTITUTIONAL LAW (CTH) – jurisdiction of Tribunal where claims made in respect of international carriage by air – when the Tribunal is deprived of jurisdiction by the alleged operation of the Montreal Convention
Judgment of
A Suthers, Principal Member
D Goldstein, Senior Member
PRACTICE AND PROCEDURE – building claim – right of applicant to withdraw building claim under s 48I of the Home Building Act 1989 (NSW) – no discretion of the Tribunal to prevent withdrawal of proceedings under s 48I – no right of respondent to insist on final hearing of dispute in these circumstances.
Judgment of
M Harrowell, Deputy President
C Mulvey, Senior Member
CONSUMER LAW — jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — claim against director of supplier company who was not involved in the supply of services-supplier company de- registered after supply of the services-business of supplier company carried on by associated company-allegation of “illegal phoenix activity” — Tribunal found it had no jurisdiction to determine claim-following the decision applicant asked the Tribunal to recuse itself a bias in respect of outstanding question of costs this. APPEALS — questions of law concerning jurisdiction of the Tribunal — decision of the Tribunal upheld — second decision about recusal for bias upheld where not attended by sufficient doubt.
Judgment of
P Durack SC, Senior Member
L Wilson, Senior Member
LEASES AND TENANCIES – order of termination under s 103 of the Residential Tenancies Act 2010 (NSW) – whether order was correctly issued in circumstances where the tenancy had been abandoned and terminated prior to the order being made – whether break-fee should have been ordered.
Judgment of
Dr R Dubler SC, Senior Member
D Ziegler, Senior Member
COSTS---Proceedings at first instance settled prior to hearing by consent orders with issue of costs reserved---r 38 Civil and Administrative Tribunal Rules 2014---Whether costs order should be made in favour of a party---Applicable principles
Judgment of
G Sarginson, Senior Member
D Robertson, Senior Member
APPEALS – internal appeal - significant new evidence not reasonably available -No grounds for leave established – appeal against order enforcing unwritten contract for residential building work to a value exceeding $30,000 allowed – s 7 and s 10 Home Building Act 1989 (NSW) – order on appeal – order for return of monies paid pursuant to order set aside on appeal. EVIDENCE – opinion evidence – consequences of non-compliance with NCAT Procedural Direction 3 – Expert Evidence – affects weight not admissibility - expert report containing bare assertions – given no weight.
Judgment of
G Sarginson, Senior Member
P Molony, Senior Member
LANDLORD AND TENANT – Residential Tenancies Act 2010 (NSW) – reduction or withdrawal of goods, services or facilities – whether failure to repair defects existing at commencement of premises can constitute a relevant withdrawal or reduction – requirements against which reduction or withdrawal are to be judged
Judgment of
M Harrowell, Deputy President
C Mulvey, Senior Member
ADMINISTRATVIE REVIEW – person under guardianship – decision of the Public Guardian that person be accommodated at an aged-care facility was affirmed - not reasonably arguably case of error APPEALS – application to extend time to lodge Notice of Appeal – application refused – insufficient prospects of success of appeal
Judgment of
A Balla, ADCJ, Principal Member
Dr R Dubler SC, Senior Member
APPEAL – related home building and strata scheme applications – no errors of law in principal decision work order decision and costs decision – no procedural unfairness in conduct of the hearing
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Notice of rent increase – Whether validly served prior to renewal of lease – Leave to appeal – Significant new evidence not reasonably available – No grounds for leave established
Judgment of
G Sarginson, Senior Member
P H Molony, Senior Member
APPEAL - whether appellant establishes error on question of law - whether appellant establishes grounds for leave to appeal - whether “new evidence” relied on by appellant was not reasonably available at time of original hearing
Judgment of
I R Coleman SC ADCJ, Principal Member
R C Titterton OAM, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – leave to appeal refused APPEALS — Procedural fairness — Whether the adjournment of a hearing or the delay of the commencement of a hearing of which notice had been given where a party is not present at the commencement of the hearing is required
Judgment of
G Blake AM SC, Senior Member
P Durack SC, Senior Member
APPEALS — right of appeal — who may exercise where Tribunal appoints manager to strata scheme with plenary powers — where lot owner not a party to proceedings at first instance seeks to appeal against decision of Tribunal pursuant to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) –proceedings incompetent due to an absence of standing
Judgment of
Armstrong J, President
A Suthers, Principal Member
LEASES AND TENANCIES – application for reinstatement of matter following dismissal for non-appearance – application dismissed on the ground of failure to provide adequate reason for non-appearance and for application being filed out of time PRACTICE AND PROCEDURE – application for reinstatement under s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) – Tribunal declined to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) APPEAL – whether the decision not to grant an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) was in error – appeal dismissed as no error in refusing to grant extension of time was made out
Judgment of
D Charles, Senior Member
Dr R Dubler SC, Senior Member
COSTS – Civil and Administrative Tribunal Rules rr 38 and 38A – Amount claimed or in dispute – Civil and Administrative Tribunal Act s 60 – Special circumstances
Judgment of
D Robertson, Senior Member
E Bishop SC, Senior Member
LAND LAW - community land - statutory obligation of neighbourhood association to maintain and keep in good repair common property under s 109 of the Community Land Management Act 2021 (NSW) (CLMA) - trotting track part of common property not kept in good repair - special resolutions by the association not to maintain and repair trotting track-application by lot owner for orders requiring that repairs be carried out - no challenge to special resolution in terms of s 109(3). APPEALS - various alleged errors raised on appeal-Tribunal examined reasons for the association’s determination not to maintain and repair trotting track and objective facts-whether any error by the Tribunal concerning this approach and dealing with these issues was irrelevant in circumstances where there was no challenge to the validity or operative effect of the special resolution.
Judgment of
P Durack SC, Senior Member
G Ellis SC, Senior Member
REAL PROPERTY – STRATA MANAGEMENT – strict duty of repair – onus of proof on scope and consequences of breach – causation and mitigation – measure and quantification of loss – Strata Schemes Management Act 2015 (NSW) ss 106, 122, 124, 232
Judgment of
S Westgarth, Deputy President
G Burton SC, Senior Member
POWERS OF ATTORNEY — reviewable powers of attorney — enduring powers of attorney — whether the Tribunal misapplied s 36(4) of the Powers of Attorney Act 2003 (NSW) APPEALS — findings of fact — whether finding that there was no evidence of “any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
J T Kearney, Senior Member
Dr M Spencer, General Member
APPEAL – summonses to treating medical practitioners to produce documents – whether Tribunal erred in setting aside summonses - whether summonses have legitimate forensic purpose – whether a fishing expedition – mistake as to facts – incorrect application of law
Judgment of
K Ransome, Principal Member
D Goldstein, Senior Member
LEASES AND TENANCIES – twenty year residential tenancy agreement – leave to adduce fresh evidence refused – no appeal against critical findings of fact
LAND LAW---Strata title---Consent of owners corporation to the lodging of a development application to works affecting common property---s 232(6) Strata Schemes Management Act 2015---Mandatory considerations---Relevant considerations---Applicable principles
Judgment of
G Sarginson, Senior Member
K Ransome, Senior Member
COSTS – appeal – errors of law in exercise of the Tribunal’s discretion under r 38 – setting aside of no order as to costs and substituting a costs’ order.
APPEALS – Failure to provide transcript or sound recording as ordered – Weight to be given to expert evidence - Communication with the Appeal Panel after the appeal was concluded – No question of principle
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior Member
APPEALS – leave to appeal - new evidence – leave to appeal under cl 12(1)(c) Sch 4 of the Civil and Administrative Tribunal Act 2013 refused – failure to consider relevant consideration - damages – inadequacy of reasons – no explanation of how damages assessed. PROCEDURE – ex parte hearing under rule 35 of the Civil and Administrative Tribunal Rules 2014 - failure to take into consideration undefended hearing evidence which could constitute a complete defence to claim – Tribunal’s obligation to satisfy itself that claim made out – failure to consider a relevant consideration.
Judgment of
S Thode, Principal Member
P H Molony, Senior Member
HUMAN RIGHTS – disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying ‘authority or body’ within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities
Judgment of
Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
APPEAL- appeal from orders requiring the appellant to remedy defective work-whether a question of law arises- whether there is a ground for leave to appeal to be granted-conflicting evidence of expert witnesses.
Judgment of
S Westgarth, Deputy President
G Ellis SC, Senior Member
APPEAL – Exclusive selling agency agreement – No sale – Liability for disbursements – Section 55A of the Property and Stock Agents Act 2002 (NSW) - No compensation for property owner – Failure to allow procedural fairness
Judgment of
L. Wilson, Senior Member
D. Goldstein, Senior Member
APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error on a question of law – failure to take into account mandatory consideration - views of person with a disability- Guardianship Act 1987 s14(2)(a)(i). No error on a question of law established – appeal dismissed. Leave to appeal not sought. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds.
Judgment of
J Moir, Senior Member
L Organ, Senior Member
J Newman, General Member
ADMINISTRATIVE LAW – hearing rule – right to cross-examine witnesses – failure to allow the Appellant to cross-examine witnesses – reliance on the evidence of those witnesses – breach of procedural fairness – practical injustice resulting from breach of obligation to provide procedural fairness
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether proposed guardian “able to exercise the functions conferred or imposed by the proposed guardianship order” PROCEDURAL FAIRNESS — whether Tribunal complied with obligation “to take such measures as are reasonably practicable to ensure each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings” NCAT Act, s 38(5)(c) Civil and Administrative Tribunal Act 2013 (NSW) PROCEDURAL FAIRNESS — “practical injustice” — whether Tribunal’s alleged to afford the appellant a reasonable opportunity to be heard deprived deprive the appellant of the possibility of a successful outcome EVIDENCE — “no evidence ” — whether finding was made without evidence LEAVE TO APPEAL — principles governing granting leave to appeal from decision made by Civil and Administrative Tribunal
Judgment of
A Britton, Deputy President
J T Kearney, Senior Member
C M Kennedy, Senior Member
COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – costs awarded against unsuccessful appellant
Judgment of
G Blake AM SC, Senior Member
D Fairlie, Senior Member
PRACTICE AND PROCEDURE – s 63 of the Civil and Administrative Tribunal Act 2013 (NSW)- Power to correct errors in decisions of the Tribunal – no error disclosed
Judgment of
M Harrowell, Deputy President
D Robertson, Senior Member
APPEAL – Guardianship Division – whether breach of procedural fairness – whether appellant should have been offered adjournment – adjournment of other proceedings so that witness available to give evidence – appeal allowed.
Judgment of
C P Fougere, Principal Member
J D’Arcy, Senior Member
C Kennedy, General Member
APPEAL – whether wrong findings made – whether no evidence for findings that NSW Trustee and Guardian investigating alleged financial abuse by sons of Subject P – whether Tribunal member biased - no question of law – leave to appeal refused – no question of principle
Judgment of
C Fougere, Principal Member
J Kearney, Senior Member
C Kennedy, Senior Member
APPEAL – Guardianship Division – whether Tribunal failed to apply legal precedents – whether breach of procedural fairness – whether appellant should have been offered adjournment – whether appellant was carer of subject person – whether failure to consider mandatory considerations - appeal dismissed
Judgment of
C Fougere, Principal Member
R Booby, Senior Member
L Porter, General Member
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent increases – In the absence of a notice served in compliance with the requirements of the Act, the entry into a renewed fixed term tenancy agreement does not increase the rent payable notwithstanding that the renewed agreement states a higher rent
Judgment of
D Robertson, Senior Member
D Goldstein, Senior Member
APPEAL – NCAT - Australian Consumer Law – British Bulldog puppy diagnosed with a serious congenital health condition shortly after being purchased - whether representations as to the health of the puppy were misleading or deceptive in breach of s 18 of the ACL – finding by Tribunal of a breach of ACL consumer guarantee that goods will be of acceptable quality – questions of law raised by Notice of Appeal when properly construed - principles for assessing proper measure of damages for breach of statutory guarantee provision of ACL– varying amount of damages ordered by Tribunal – claim for appellant’s costs of appeal
Judgment of
S Westgarth, Deputy President
M Gracie, Senior Member
ADMINISTRATIVE LAW – internal appeal – application for an extension of time to lodge the appeal – whether the appeal lacks merit TAXES AND DUTIES – Land tax – Surcharge land tax – principal place of residence exemption
CIVIL PROCEDURE – whether Tribunal has jurisdiction to hear an appeal from a statement of the Tribunal that “The Information Commissioner appears and has a right to be heard in these proceedings but is hot a party” – whether such a statement is an internally appealable decision – whether leave should be given to appeal from interlocutory decisions by way of procedural directions - whether certain questions of law should be referred to the Supreme Court – whether the Appeal Panel members should recuse themselves
Judgment of
Hennessy ADCJ, Deputy President
Dr R Dubler SC, Senior Member
APPEAL- damage to lot property in a strata scheme-whether leave to appeal should be granted having regard to evidence-whether evidence was misinterpreted-whether decision resulted in a clear injustice-whether owners corporation liable to perform a work order- consideration of sections 106, 122 and 232 of the Strata Schemes Management Act
Judgment of
S Westgarth, Deputy President
G Burton SC, Senior Member
LAND LAW – Strata title – Duty to maintain and repair common property – Liability of owners corporation for foreseeable losses sustained by reason of a failure to maintain and repair common property - Strata Schemes Management Regulation 2016 clause 60 – Parties to pay their own costs associated with a mediation – Whether damages for failure to repair and maintain common property may include legal costs associated with a mediation seeking to resolve a dispute concerning the maintenance of common property
Judgment of
D Robertson, Senior Member
G Sarginson, Senior Member
APPEALS – costs – redetermination of costs at first instance after successful appeal - statutory interpretation – when amendment increasing Tribunal’s monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect
Judgment of
A Suthers, Principal Member
G Curtin SC, Senior Member
APPEAL- whether substantive appeal and a costs appeal should be adjourned because of concurrent Supreme Court proceedings- whether the risk of inconsistencies between the findings of the appeal panel and the findings of the Supreme Court should be avoided by adjourning the appeals.
Judgment of
S Westgarth, Deputy President
Balla ADCJ, Principal Member
APPEALS – jurisdiction of Tribunal to determine matter in exercise of judicial power where the Australian Postal Corporation is a party – authority to decide whether Australian Postal Corporation is ‘the Commonwealth’ for the purpose of s 75(iii) of the Constitution – whether the mere raising of that contention on a genuine basis deprives the Tribunal of jurisdiction – jurisdiction of Tribunal’s Appeal Panel to make orders affecting decision at first instance in absence of ability to adjudicate on matters in federal jurisdiction
Judgment of
A Suthers, Principal Member
D Goldstein, Senior Member
APPEAL - Administrative Law - application for a contractor licence under the Home Building Act -whether the applicant had attained experience as an employee or as a subcontractor - factors to be considered when determining whether an employer/employee relationship existed -consideration of the purpose of the requirement for experience to be attained as an employee.
Judgment of
S Westgarth, Deputy President
A Suthers, Principal Member
COSTS - application for a stay – allegation Tribunal, and therefore the Appeal Panel, lacks jurisdiction – whether jurisdiction as to costs remains if not consequent upon or linked to the adjudication of aspects of the matter which may be in federal jurisdiction
APPEALS – Whether decision fair and equitable – whether Tribunal required to suggest basis for claim LEASES AND TENANCIES – Retail lease – power of Tribunal to declare rent not payable
Judgment of
G Ellis SC, Senior Member
P H Molony, Senior Member
APPEALS – adequacy of reasons – Tribunal’s obligation to give reasons under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) – when inadequate reasons require a new hearing
Judgment of
A Suthers, Principal Member
P Molony, Senior Member
APPEALS - appeal from decision made under Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 setting aside orders made in the absence of the respondent to the appeal – ancillary decision – right of appeal on a question of law – adequacy of reasons – re-determination of set aside application by the Appeal Panel – discretionary considerations.
Judgment of
P Durack SC, Senior Member
A Lo Surdo SC, Senior Member
PRACTICE AND PROCEDURE – whether the Tribunal erred in failing to set aside Summonses for production – whether the Tribunal failed to apply the test of legitimate forensic purpose – whether the Tribunal ought to have set aside the Summons as amounting to a fishing expedition
Judgment of
Hennessy ADCJ, Deputy President
Dr R Dubler SC, Senior Member
APPEALS – Adequacy of reasons LAND LAW – Strata title – By-laws - Interpretation of by-law – Whether by-law is an “instrument” for the purposes of the Interpretation Act 1987 (NSW) WORDS AND PHRASES – “Instrument”
Judgment of
D Robertson, Senior Member
G Ellis SC, Senior Member
APPEALS — Appeal on question of law – Scope of question of law - Allegations of constructive failure to exercise jurisdiction APPEALS — Procedure — Time limits — Extension of time – application dismissed
Judgment of
G Blake AM SC, Senior Member
D Fairlie, Senior Member
REAL PROPERTY – STRATA MANAGEMENT – appointment of compulsory strata manager - no error of law or fact - Strata Schemes Management Act 2015 (NSW) s 237
Judgment of
A Suthers, Principal Member
G Burton SC, Senior Member
HUMAN RIGHTS – discrimination – whether the Respondent discriminated against the Appellant on the ground of disability in declining to provide home assisted education – whether differential treatment – what was the correct comparator – whether education services are provided to both the child and the parents within the meaning of s 49M of the Anti-Discrimination Act 1977 (NSW)
Judgment of
A Balla, ADCJ, Principal Member
Dr R Dubler SC, Senior Member
VICTIMS RIGHTS – whether restitution order was properly made – whether the relevant proceedings against the Appellant were civil proceedings within the meaning of s 59(2)(b) of the Victims Rights and Support Act 2013 (NSW)
Judgment of
Hennessy ADCJ, Deputy President
Dr R Dubler SC, Senior Member
APPEALS – whether the Tribunal erred in allowing that there was a contract entered into between the parties in circumstances were one party was not aware that an agent was acting for an undisclosed principal – rationale for the doctrine of undisclosed principal
Judgment of
G Blake AM SC, Senior Member
R C Titterton OAM, Senior Member
APPEAL – Leave to appeal granted – assessment of tenants’ loss resulting from wrongful disposal of goods not fair and equitable – nominal damages awarded – substantial injustice – Clause 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013. LEASES AND TENANCIES – Residential Tenancies – wrongful disposal of tenant’s goods in breach of s 61(2) of the Residential Tenancies Act 2010 – assessment of compensation
Judgment of
A Suthers, Principal Member
P H Molony, Senior Member
APPEAL – Whether decision to make timetabling orders was internally appealable decision – Whether leave should be granted to appeal from summary dismissal decision
ADMINISTRATIVE LAW - discrimination – disability discrimination – indirect – condition or requirement – denying or limiting access to a benefit – subjecting to detriment – education
Judgment of
A Balla ADCJ, Principal Member
Dr Dubler SC, Senior Member
Appeal – tenant’s application alleging noise in apartment constituting a breach by the landlord of landlord’s obligations under the Residential Tenancies Act 2010 (NSW) – errors by Tribunal in rejecting tenant’s applications under ss 44 and 45 of the Residential Tenancies Act 2010 – errors of no consequence - Tribunal considered tenant’s evidence in the context of a potential breach of s 52 – failure by tenant to discharge onus of proof
Judgment of
S Westgarth, Deputy President
D Ziegler, Senior Member
Whether Tribunal erred in its consideration of s 36 of the Powers of Attorney Act; whether the Tribunal erred in making an order for financial management pursuant to the Guardianship Act
Judgment of
I R Coleman SC ADCJ, Principal Member
L Organ, Legal Member
J Newman, General Member
RESIDENTIAL TENANCY – whether or not eviction notice was a retaliatory notice pursuant to s 115 of the Residential Tenancies Act 2010 (NSW) – whether the Tribunal erred in its award of compensation for failure by the landlord to effect repairs
Judgment of
T Simon, Principal Member
Dr R Dubler SC, Senior Member
RESIDENTIAL TENANCY – whether the Tribunal wrongly allowed evidence – whether the Tribunal wrongly ordered compensation for the landlord on termination of the tenancy
Judgment of
T Simon, Principal Member
Dr R Dubler SC, Senior Member
APPEAL – claim under s 106 of the Strata Schemes Management Act 2015 (NSW) for compensation as a lot owner – whether the evidence established loss – whether the reasons given by the Tribunal at first instance were adequate and/or reasonable – consideration of the obligations under s 52 of the Residential Tenancies Act 2010 (NSW) – whether there should be a remittal or whether the Appeal Panel should award compensation in favour of the Appellant having determined to set aside the decision at first instance.
Judgment of
S Westgarth, Deputy President
M Gracie, Senior Member
APPEALS – PROCEDURAL FAIRNESS – Where Tribunal decided to dispense with a hearing – Whether Tribunal gave appellant an opportunity to be heard about decision to dispense with a hearing APPEALS – JURISDICTION – Whether Tribunal erred in finding that it lacked jurisdiction to determine the appellant’s application
Judgment of
A Britton, Deputy President
Dr J Lucy, Senior Member
HUMAN RIGHTS - disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying ‘authority or body’ within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities
Judgment of
Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
COSTS – whether special circumstance exists – whether costs should be awarded against self-represented party said to engage in vexatious or frivolous conduct or advancing contentions that are misconceived – whether a lump sum order should be made
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
COSTS- costs of appeal- special circumstances- late withdrawal of allegation by Costs Respondent where other grounds not pursued at appeal hearing- where Costs Respondent warned at Directions Hearing as to possibility of costs order in those circumstances– effect of withdrawal as a surrender – proportion of costs properly payable.
Judgment of
S Thode, Principal Member
J S Currie, Senior Member
ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Renewal of proceedings in the Consumer and Commercial Division – Civil and Administrative Tribunal Act 2013 (NSW) Schedule 4 clause 8 – Restriction on renewal application if the order not complied with “is or has been the subject of an internal appeal” – Restriction does not apply where order not varied on internal appeal
Judgment of
D Robertson, Senior Member
J S Currie, Senior Member
APPEALS – claim under the Australian Consumer Law (NSW) – application of s 54(7) of that legislation – failure to engage with a clearly articulated case – admissibility of evidence where rules of evidence inapplicable
Judgment of
A Suthers, Principal Member
P Durack SC, Senior Member
COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event - issues severable – respondent successful on one issue – whether order for costs should reflect respondent’s partial success and unreasonable conduct of the appellant
Judgment of
G Blake AM SC, Senior Member
J S Currie, Senior Member
GUARDIANSHIP — decision to revoke a financial management order — s 25P(2) of the Guardianship Act 1987 (NSW) — meaning of expression “is capable of managing his or her affairs” in s 25P(2)(a) of the Guardianship Act 1987 (NSW) EVIDENCE — Expert evidence in proceedings in the Guardianship Division of NCAT—— whether expert tailored their opinion to advantage a party APPEALS — whether finding that the subject person has capacity to manage her affairs was “against the weight of evidence” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) APPEALS — fresh evidence — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised
Judgment of
A Britton, Deputy President
D Charles, Senior Member
B McPhee, Senior Member
ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act 1998 (NSW) – IPPs 5, 10, 11 and 12 – Health Record Information Protection Act 2002 (NSW) – HPPs 4, 5, 10 and 11 – whether s 25(b) of the PPIP Act applied and exempted compliance with the relevant IPPs and HPPs – whether information was unsolicited for the purposes of IPPs 10, 11 and HPPs 10 and 11 APPEALS – whether the Appellant was denied procedural fairness
Judgment of
Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
ADMINISTRATIVE ORDER – government information – reasonable searches – whether the Tribunal ought to have disclosed more documents APPEALS – whether the Appeal Panel ignored evidence or made findings without evidence – whether the Appellant was denied procedural fairness
Judgment of
A Balla, ADCJ, Principal Member
Dr R Dubler SC, Senior Member
COSTS – Applications by both parties – costs application includes appellant’s costs of proceedings at first instance – failure to prosecute the application for costs of the proceedings at first instance despite directions made – failure to appeal default order made in the proceedings at first instance – inappropriateness of Appeal Panel dealing with costs of the proceedings at first instance in these circumstances – limited success of appellant in appeal proceedings – departure from the usual order that a successful party be entitled to the costs of the appeal where r 38 applies. PRACTICE AND PROCEDURE – non-publication order
Judgment of
M Harrowell, Deputy President
A Lo Surdo SC, Senior Member
APPEALS – challenge to findings concerning formation of contract, terms and whether contract breach – whether respondent failed to comply with the Australian Consumer Law (NSW) concerning consumer guarantees – whether leave to appeal should be granted on matters other than those raising a question of law
Judgment of
M Harrowell, Deputy President
D Goldstein, Senior Member
APPEALS - procedural fairness principles - claim of procedural unfairness concerning money order -orders made by Tribunal in absence of the appellant - duty of a party to cooperate with the Tribunal - fact dependent questions - totality of the circumstances -leave to appeal by telephone or AVL granted and then set aside - controversy as to call from the Tribunal - appellant raised Covid-19 affecting its staff and relevant director as an issue - dispute as to credibility of explanation for non-appearance - sworn evidence taken on appeal - relevant director not available when call from the Tribunal received -reference to making a second call - no denial of procedural fairness in all the circumstances - appeal from interlocutory order setting aside leave to appear by telephone or AVL was moot or any error did not result in substantial injustice.
Judgment of
P Durack SC, Senior Member
G Ellis SC, Senior Member
APPEALS — leave to appeal from interlocutory decision to decline to exercise the discretion to order that a party be separately represented under Civil and Administrative Tribunal Act 2013 (NSW), s 45(4)(c) FRESH EVIDENCE — whether new evidence reveals that solicitor breached, or might breach Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) GUARDIANSHIP — whether Tribunal to give paramount consideration to welfare and interests of the subject person as required by s 4 Guardianship Act 1987 (NSW) — meaning of expression “welfare and interests” in s 4 Guardianship Act
Judgment of
A Britton, Deputy President
A R Boxall, Senior Member (Legal)
M E Bolt, General Member
TAXATION AND DUTIES – Parking Space Levy – exemption - whether parking spaces ‘set aside exclusively’ for exempt / non-exempt purposes – whether visitor parking spaces in a residential complex can be said to be spaces that are set aside exclusively for the purpose of parking of motor vehicles ‘by’ persons who reside on the premises within the meaning of reg 7(1)(b) of the Parking Space Levy Regulation 2009 (NSW) and reg 8(1)(b) of the Parking Space Levy Regulation 2019 (NSW)
Judgment of
N Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
LICENSING — firearms — fit and proper person — public interest APPEAL — whether leave to appeal should be granted — whether the Tribunal misconstrued key parts of the evidence — whether the Tribunal misinterpreted some of the evidence
Judgment of
Dr R Dubler SC, Senior Member
E Bishop SC, Senior Member
APPEAL – appeal from consent orders – negotiations facilitated by Tribunal – Tribunal made factual error as to licence status of respondent – relevant principles – no error
Judgment of
D Robertson, Senior Member
K Ransome, Senior Member
GOVERNMENT INFORMATION — whether in deciding to affirm the “information not held” decision under s 58(1)(b) of the Government Information (Public Access) Act, the Tribunal made a decision without evidence PROCEDURAL FAIRNESS — apprehended bias —whether the reason for decision given by the Tribunal gave rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — adjournment —whether by declining to grant the appellant’s application for adjournment of the hearing the appellant was denied procedural fairness EVIDENCE — no evidence — whether Tribunal made findings of fact without evidence REASONS FOR DECISION — whether delay in making decision resulted in a denial of procedural fairness REASONS FOR DECISION — whether reasons for decision were adequate APPEAL — fresh evidence — whether the power conferred by 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) to deal with an appeal by way of a new hearing should be exercised
Judgment of
A Britton, Deputy President
Dr J Lucy, Senior Member
OCCUPATIONAL — Home Building Act 1989 (NSW) - application for restoration of supervisor certificate previously held by appellant - whether appellant took all reasonable steps to avoid external administration – whether appellant is a fit and proper person – whether error established
Judgment of
A Balla ADCJ, Principal Member
S Thode, Principal Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing LAND LAW — Strata title — Owners corporation - maintenance and repair of common property - breach of obligation to maintain and repair common property – where lot affected by water leakage –action for work order and recovery of loss by lot owner from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act
Judgment of
G Blake AM SC, Senior Member
J S Currie, Senior Member
APPEALS – statutory interpretation – when amendment increasing Tribunal’s monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect – questions of law – adequacy of reasons as a question of law – need to identify questions of law with clarity
Judgment of
A Suthers, Principal Member
G Curtin SC, Senior Member
ADMINISTRATIVE REVIEW - Protective Division – whether sale of the protected person’s family home is in the best interests of the protected person APPEAL – whether the Appeal Panel ignored evidence or the weight of the evidence – whether the Tribunal was biased – whether the Tribunal failed to consider the view of the protected person – whether the Tribunal failed to take into account an agreement reached between the protected person and her son
Judgment of
T Simon, Principal Member
Dr R Dubler SC, Senior Member
COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event - application of the rule where no hearing on the merits
Judgment of
G Blake AM SC, Senior Member
J S Currie, Senior Member
LEASES AND TENANCIES-residential tenancy-proceedings in relation to rental bond and other claims by the tenant after the end of the tenancy-order made in earlier proceedings in favour of landlords for rental arrears-award of compensation to tenant for loss of quiet enjoyment resulting from repair and mould issues-compensation awarded less than the amount sought by the tenant-net amount still owing to the landlord. APPEALS-whether to grant an extension of time to lodge the appeal-no error of law as to whether the Tribunal misunderstood the landlords’ claim in respect of the rental bond - other issues raised on appeal concerned challenges to findings of fact-no arguable case of appealable error.
Judgment of
P Durack SC, Senior Member
D Ziegler, Senior Member
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Appellant claiming interest in property by virtue of special conditions in tenancy agreement and/or “concurrent agreement” – Claimed interest in property did not prevent termination of tenancy ADMINISTRATIVE LAW – Particular administrative bodies – NSW Civil and Administrative Tribunal – Procedural fairness – Proceedings listed for directions but Tribunal made orders determining the matter – No denial of procedural fairness where appellant was legally represented and its representative made no protest when the Tribunal indicated it proposed to determine the matter – Submissions filed by the appellant in accordance with directions had identified no legitimate basis of opposition to the orders sought
Judgment of
D Robertson, Senior Member
G Burton SC, Senior Member
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) s 48K — Jurisdiction of the Civil and Administrative Tribunal — Claim for breach of statutory warranty — Section 48K(3) does not limit the Tribunal’s jurisdiction in respect of claims for breach of statutory warranty — Civil and Administrative Tribunal Act Schedule 4 clause 6 — Power of the Tribunal to transfer proceedings to a court — The Tribunal has power to transfer proceedings to a court even where the Tribunal has no jurisdiction in respect of the claim — Consideration of the circumstances in which it will be appropriate to order the transfer of proceedings
Judgment of
D Robertson, Senior Member
E Bishop SC, Senior Member
COSTS – where appeal allowed in part – mixed success on separate issues – considerations relevant to order for costs where issues separate and mixed success
Judgment of
M Harrowell, Deputy President
D Robertson, Senior Member
COSTS--- whether there should be costs orders of the proceedings at first instance following a remittal order- costs at first instance remitted- costs incurred in appeals where one party is predominately successful- costs order for two thirds of costs incurred- whether indemnity costs should be ordered or await the determination of the applications following the remittal.
Judgment of
S Westgarth, Deputy President
G Sarginson, Senior Member
APPEALS — Leave to appeal — Decision to refuse application for a party to be represented by a non-legally qualified representative — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused — Question redetermined with further evidence – Considerations regarding non-qualified persons representing parties – What constitutes engaging in legal practice — Non disclosure order sought — Principles to be considered
COSTS– costs of appeal – appellant’s position not advanced as a result of successful appeal – s 60 of the Civil and Administrative Tribunal Act 2013 – no special circumstances – application for costs of the appeal dismissed.
COSTS-appeal from Tribunal decision in administrative review proceedings-appeal dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) because misconceived and lacked substance since appeal was moot-respondent’s application for costs of the appeal under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)-whether there were special circumstances warranting an award of costs.
APPEALS — Appeal on question of law – Scope of question of law APPEALS — From exercise of discretion — Acting on the wrong principle APPEALS — Leave to appeal — Principles governing – Leave to appeal refused BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder – Whether single cause of action for breach of contract – Whether amendments to introduce new defects more than two years after completion of building work should be permitted – Money order made against the builder
Judgment of
A Suthers, Principal Member
G Blake AM SC, Senior Member
COSTS — whether amount claimed or in dispute in proceedings more than $30,000 — whether there are any “special circumstances” to warrant an award of costs — amount claimed or in dispute not more than $30,000 — no special circumstances — costs not awarded
Judgment of
G Curtin SC, Senior Member
E Bishop SC, Senior Member
ADMINISTRATIVE LAW – privacy – whether personal information was disclosed – whether personal information was in the public domain APPEAL – whether the Tribunal failed to address submissions of the Appellants
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
APPEAL – administrative review - firearms – revocation of firearm licence – non-disclosure orders – where non-disclosure orders made which prohibited disclosure of some evidence to applicant – principles of open justice and procedural fairness –approach to dealing with confidential evidence which has not been disclosed to the applicant – error on a question of law – adequacy of reasons
Judgment of
Hennessy ADCJ, Deputy President
A Boxall, Senior Member
OCCUPATIONS – whether an interlocutory decision in respect of a summons to produce in proceedings in the occupational division of the Tribunal is a decision made for the purposes of the Health Practitioner’s Regulation National Law (NSW) within the meaning of clause 29(1)(d) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether accordingly such a decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW). APPEAL – whether an interlocutory decision in respect of access to documents produced on a summons is not internally appealable by reason of the decision being in proceedings made for the purposes of the Health Practitioner’s Regulation National Law (NSW) within the meaning of clause 29(1)(d) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
Hennessy, ADCJ, Deputy President
Dr R Dubler SC, Senior Member
COSTS---r 38A Civil and Administrative Tribunal Rules 2014 (NSW)---Both parties successful on different issues---Whether proportionate costs order appropriate
Judgment of
G Sarginson, Senior Member
K Ransome, Senior Member
APPEAL- landlord’s breach of a residential tenancy agreement-tenant’s claims for compensation-error in not considering late evidence concerning expert’s relationship with the landlords- evidence concerning landlords actions in cutting off electricity- failure to repair and maintain-claims out of time- whether evidence of adverse health consequences on tenant was persuasive coming from a person not medically qualified.
Judgment of
S Westgarth, Deputy President
R C Titterton OAM, Senior Member
Appeal – Social housing - estoppel – error in application of principles of cause of action estoppel and/or issue estoppel - re-hearing – compensation awarded for breach of tenant’s right to quiet enjoyment
Judgment of
C Fougere, Principal Member
L Wilson, Senior Member
APPEALS – application to vary regularly made decisions of the Appeal Panel under regulation 9 of the Civil and Administrative Tribunal Regulations 2022 (NSW) – power of the Tribunal to do so where the terms of that regulation not engaged – separate factors to be considered in respect of an application to vary a decision regarding non-disclosure or non-publication
GOVERNMENT INFORMATION – whether Register of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1995 (NSW) is a public register – whether the Registrar of Births, Deaths and Marriages contravened the Privacy and Personal Information Protection Act 1998 (NSW) by disclosing a person’s birth certificate to a solicitor allegedly for use in foreign court proceedings without the consent of that person – whether by reasons of the terms of the Births, Deaths and Marriages Registration Act 1995 (NSW) s 25 of the Privacy and Personal Information Protection Act 1998 (NSW) exempted the Registrar from complying with sections 18 and 19 of the Privacy and Personal Information Protection Act 1998 (NSW)
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
COSTS — costs of appeal — no need for special circumstances because amount in issue on appeal well in excess of $30,000 — appellant successful in having orders made at first instance set aside — order for proceedings concerning claim for unconscionable conduct and rental arrears remitted to the Tribunal for redetermination — appellant unsuccessful in limited respects — discount applied to costs awarded to the successful appellant.
Judgment of
P Durack SC, Senior Member
E Bishop SC, Senior Member
APPEALS – stay – procedural directions made in face of assertion Tribunal lacked jurisdiction – jurisdiction of Appeal Panel if assertion correct – application for stay ill-conceived
COSTS – costs of appeal-applications for costs of the appeal misconceived on basis that Rule 38 (2) of the Civil and Administrative Tribunal Rules 2014 (NSW) applied because claim at first instance exceeded $30,000, whereas the true question concerned what was claimed or in dispute on appeal.
Judgment of
P. Durack SC, Senior Member
M Deane, Senior Member
APPEAL – Whether appellant notified of the hearing – whether a denial of procedural fairness – whether rehearing should be ordered – whether to extend time for lodgement of the appeal.
APPEAL – COSTS - success on aspects of procedural fairness and on adequacy of reasons in late-amended appeal grounds – remitter to differently-constituted Tribunal – not sufficient to constitute special circumstances
Judgment of
S Westgarth, Deputy President
G K Burton SC, Senior Member
APPEALS — Procedure – Orders on appeal – Restitution – Where judgment partially set aside on appeal has been paid prior to determination of the appeal – Possibility that costs order may be made against successful appellant on remittal of issue of costs of first instance proceedings is not sufficient reason to decline to make an order for restitution of the overpayment
Judgment of
S Thode, Principal Member
D Robertson, Senior Member
LEASES AND TENANCIES-retail lease-claim for unpaid rent-separate claim by a tenant seeking relief based upon allegations that lessor failed to comply with COVID-19 regulations in respect of an “impacted lessee”-preliminary question decided by Tribunal in favour of the lessee as to whether the lessee had forfeited the COVID-19 “protections”-commercial leasing principle 2 in National Cabinet Mandatory Code of Conduct referred to forfeiture of protections provided to the tenant under the Code-no statutory provision for such forfeiture. APPEALS-appeal from a decision on a preliminary question -question of law-preliminary question posed and answered on incorrect premise as to status and effect of the commercial leasing principle in issue.
Judgment of
S Thode, Principal Member
P Durack SC, Senior Member
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) ss 85, 115 – no grounds termination – alleged retaliatory eviction – no error of law or fact
Judgment of
D Robertson, Senior Member
G Burton SC, Senior Member
APPEAL – Residential Tenancy – Appellant resiling from previous agreements Appeal – Residential Tenancy – Withdrawn at first instance -No reason to allow the appellant to reagitate withdrawn claims
Judgment of
C Fougere, Principal Member
L Wilson, Senior Member
APPEALS — Leave to appeal — Decision to refuse application for a party to attend final hearing by audiovisual link — Matter of practice and procedure — Decision reached not unreasonable or plainly unjust — No material consideration ignored — House v The King error not made out — Leave to appeal refused
APPEALS – appeals from interlocutory decisions – leave required - appeals on questions of law – appeals where leave required – no question of principle
Judgment of
R C Titterton OAM, Senior Member
P H Molony, Senior Member
BUILDING AND CONSTRUCTION – contract not in writing – dispute concerning scope of work – admissibility of evidence – need to prove loss or damage arises from conduct of builder and reasonable cost of making good such loss or damage CONTRACTS – Construction and interpretation –oral contract – dispute concerning scope of work – admissibility of post contractual evidence DAMAGES – consequential loss – remoteness of damage – loss of rental income not recoverable as too remote DAMAGES – interest on damages – no entitlement where no contractual provision, s 100 of the Civil Procedure Act 2005 (NSW) does not apply and Hungerfords v Walker type damages not proved
Judgment of
M Harrowell, Deputy President
A Lo Surdo SC, Senior Member
APPEAL – questions of law – adequacy of reasons – application of ‘not in the best interest of the child’ in cl 3(g) of the Table to s 14 of the Government Information (Public Access) Act 2009 (NSW)
Judgment of
R Dubler SC, Senior Member
S Higgins, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – whether the builder was entitled to terminate the contract by reason the failure of the owner to provide information within the specified time CONTRACTS — Construction — Interpretation – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency CONTRACTS — Construction — Interpretation - where waiver must be in writing
Judgment of
G Blake AM SC, Senior Member
L Wilson, Senior Member
APPEAL- consideration of the Respondents Guide containing a requirement for a minimum of two years relevant experience in the preceding two years- no question of law or a ground for the granting of leave.
Judgment of
S Westgarth, Deputy President
Dr R Dubler SC, Senior Member
APPEALS –– appeal from summary dismissal of administrative review application –– interlocutory decision of Tribunal requiring leave to appeal –– consideration of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– “lacking in substance” –– leave refused ADMINISTRATIVE LAW –– application for administrative review of directions contained in a public health order –– where all four relevant public health orders had been repealed or expired prior to the hearing –– whether proceedings “futile”, “of no practical effect” or “lacking in utility” WORDS AND PHRASES –– meaning of “lacking in substance”
Judgment of
Armstrong J, President
A Britton, Deputy President
COSTS – Where appeal withdrawn without explanation – whether capitulation – usual rule as to costs displaced by rr 38 & 38A Civil and Administrative Tribunal Rules 2014 (NSW) – insufficient evidence to consider costs order in a fixed sum
COSTS – Where appeal withdrawn without explanation – orders at first instance by consent – whether capitulation – usual rule as to costs displaced by rr 38 & 38A Civil and Administrative Tribunal Rules 2014 (NSW)
CONSUMER CLAIM – MOTOR VEHICLE — leave to appeal refused – whether decision not fair and equitable – whether decision against the weight of the evidence – no question of principle
APPEALS – appeal from decision concerning a consumer claim for provision of services – time limit for accrual of jurisdiction – whether Tribunal has jurisdiction – advice given in breach of Australian Consumer Law – bias
Judgment of
S Westgarth, Deputy President
M Deane, Senior Member
APPEAL – Denial of procedural fairness – Failure to afford parties opportunity to cross examine APPEAL – Inadequacy of reasons APPEAL – Costs – Wrong test applied – Amount in dispute separate proceedings – Proceedings not consolidated
CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Jurisdiction and powers APPEALS — Further evidence not admitted — Evidence available at hearing – no question of law – leave to appeal refused
Judgment of
G Ellis SC Senior Member
P H Molony, Senior Member
LEASES AND TENANCIES - residential tenancy -unlawful termination by landlord before tenants took possession-award of damages for inconvenience, distress and disappointment-challenge to size of the award. APPEALS - no question of law-size of the award involved an evaluative conclusion in respect of which a range was permissible-size of the award was not manifestly excessive- short extension of time to lodge appeal granted - leave to appeal refused.
Judgment of
P Durack SC, Senior Member
D Charles, Senior Member
APPEAL — NCAT— appeal from decision of Consumer and Commercial Division of NCAT – absence of expert evidence - questions of law – whether Tribunal’s reasons were adequate – whether denial of procedural fairness – whether constructive failure to exercise jurisdiction – remittal of whole of the proceedings.
Judgment of
G Blake AM SC, Senior Member
M Gracie, Senior Member
CONSUMER LAW-acquisition of goods, being a mature tree for a garden –consumer guarantees in Australian Consumer Law (NSW) - whether tree supplied was in breach of contract or in breach of consumer guarantees of acceptable quality and fit for purpose - orders made at first hearing, without hearing on the merits, in relation to the supply of a different type of tree - renewal proceedings - leave to renew refused. APPEALS-extension of time to lodge appeal required – delay not inconsiderable – unsatisfactory explanation for delay - prospects of success of appeal to be considered - appeal from interlocutory order, albeit one that disposes of the proceedings - leave to appeal required – application of leave to appeal principles – correct interpretation of initial orders by Tribunal - no other interpretation reasonably open - Tribunal’s conclusions about circumstances surrounding renewal application reasonably open to it -Tribunal’s decision not attended by sufficient doubt - no substantial injustice where merits of claim considered by the Tribunal on the alternative basis that it ought to have granted leave to renew and no appellable error shown in respect of what were factual conclusions - no point of principle or other grounds for exercise of discretion to grant leave to appeal.
Judgment of
P. Durack SC, Senior Member
G. Burton SC, Senior Member
APPEAL – from refusal to set aside summons to a potential witness in privacy proceedings – requirement for agency to consult in application for release of information under the Government Information (Public Access) Act 2009 (NSW) - nature of claimed legitimate forensic purpose for person consulted to give evidence under summons
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Rent reduction---Withdrawal or reduction of facilities---Failure to repair---Quantum of rent reduction---Applicable principles –Questions of law--leave to appeal—reasons inconsistent with orders--remitter
Judgment of
G Sarginson, Senior Member
M Gracie, Senior Member
APPEALS---Leases and tenancies---Legislation protecting tenants---Retirement Villages Act 1999 (NSW)---Item of capital---Duty to maintain or replace---Facility---Withdrawal or variation of facility---Meaning of facility---Meaning of variation.
Judgment of
G. Sarginson, Senior Member
P. Molony, Senior Member