Financial management order- whether decision at first instance based on material errors of fact- whether Tribunal at first instance failed to give proper, genuine and realistic consideration to mandatory relevant consideration- whether Tribunal erred by declining to appoint member of protected person’s family as her financial manager
Judgment of
I R Coleman SC ADCJ, Principal Member
J Moir, Senior Member
Dr M Wroth, Senior Member
COSTS- costs of appeals-whether costs may be awarded in the absence of special circumstances- application of rules 38 and 38A- orders to adjust insurance premiums under s162(4) of the Strata Schemes Management Act 2015NSW
Judgment of
S Westgarth, Deputy President
PH Molony, Senior Member
APPEAL – retail lease – whether appellant an impacted lessee for purposes of COVID-19 Regulations – whether Tribunal made factual errors – whether appellant was denied procedural fairness – whether Tribunal failed to consider evidence and submissions made by appellant
Judgment of
K Ransome, Principal Member
H Dixon SC, Senior Member
APPEAL – extension of time in which to appeal – exercise of discretion – length of delay – adequacy of explanation for the delay – prejudice to respondent – non-compliance with Tribunal order - no error of law
BUILDING and CONSTRUCTION – HOME BUILDING – breaches of Home Building Act by builder – repudiation by homeowner – no error on question of law or miscarriage of justice – findings of fact open on the evidence
Judgment of
G Burton SC, Senior Member
J Redfern PSM, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Further evidence — Power to receive further evidence – Application dismissed APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Bias - No bias APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Application to amend complaint – Application dismissed EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Grounds — Disability discrimination - Whether actions taken by management constituted disability discrimination
Judgment of
G Blake AM SC, Principal Member
K Robinson, Principal Member
APPEAL – Strata Title-Strata Schemes Management Act -compensation pursuant to section 106 -whether significant new evidence has arisen COSTS- Costs may not be awarded in respect of amounts payable by a party to a non-lawyer which are not legal costs or disbursements and which do not involve the provision of legal services.
Judgment of
S Westgarth, Deputy President
A Bell SC, Senior Member
APPEAL – whether Tribunal member was affected by actual or apprehended bias – whether there was a failure to afford procedural fairness – adequacy of reasons.
LANDLORD and TENANT- residential tenancy -termination of periodic tenancy by notice - termination order required under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA) subject to power under s115 of the RTA to refuse to make a termination order on grounds that the application for a termination order is retaliatory - earlier Tribunal decision that the notice for termination was not retaliatory - elapse of time between termination notice and application for a termination order - whether change in motivation for pursuing a termination order such that it was retaliatory - discretion in the exercise of powers under s 115 - breakdown of relationship between landlord and tenant - tenant evicted under warrant for possession lawfully issued by the landlord - even if a reason for pursuit of termination order was retaliatory whether the Tribunal would not refuse to order termination. APPEAL - decision of the Tribunal to make a termination order was affected by procedural unfairness - decision of the Appeal Panel to conduct a new hearing pursuant to s 80 (3) (b) of the Civil and Administrative Tribunal Act 2013 (NSW).
Judgment of
P Durack SC, Senior Member
D Ziegler, Senior Member
APPEAL – costs of appeal ─ counsel’s fees claimed by self-represented party ─ whether those costs should be allowed ─ costs claimed for transcript obtained for the proceedings appealed ─ exercise of discretion to order lump sum
Judgment of
J Redfern PSM, Senior Member
D Goldstein, Senior Member
BUILDING AND CONSTRUCTION – Home Building – renewal of proceedings where work order previously made under Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013 (NSW) – claim for defective remediation works done pursuant to consent order.
Judgment of
P H Molony, Senior Member
R C Titterton AM, Senior Member
REAL PROPERTY – LANDLORD and TENANT – RETAIL TENANCY – COVENANTS - liability of original guarantor for obligations after transfer of lease - Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 GUARANTEE and INDEMNITY - liability of original guarantor for obligations after transfer of lease – Conveyancing Act 1919 (NSW) ss 70, 70A, 116, 117 EQUITY – assignments at law – signature and notice requirements - Conveyancing Act 1919 (NSW) s 12
Judgment of
S de Jersey, Principal Member
G K Burton SC, Senior Member
COSTS – costs application by the respondent – principles – dismissal of the appeal because of the failure of the appellant to appear - no hearing on the merits – costs application granted
LEASES & TENANCIES – Residential Tenancies Act 2010 (NSW) - failure to determine tenant’s claims with the landlord’s termination application when no application fee had been paid and application not lodged on standard form
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed
APPEAL – denial of procedural fairness – interventions from bench preventing party from presenting their case – requirement for materiality – adequacy of reasons FREEDOM OF INFORMATION – Government Information (Public Access) Act 2009 – information subject to a conclusive overriding public interest against disclosure because it is subject to non-disclosure order under s 64 of the Civil and Administrative Tribunal Act 2013 – legal professional privilege – meaning of “government information”
Judgment of
Seiden SC DCJ, Deputy President
P H Molony, Senior Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) – constructive failure to exercise jurisdiction
CIVIL PROCEDURE - hearings – adjournments – grounds for adjournment – medical condition of representative of party – sufficiency of evidence – personal circumstances of representative of party – recent illness of mother - discretion to adjourn – applicable principles – whether refusal to adjourn a denial of procedural fairness
Judgment of
G Sarginson, Deputy President
R C Titterton OAM, Senior Member
CONSUMER LAW – refund claim for supply and installation of pool heater – consumer guarantees of acceptable quality and of due care and skill – Australian Consumer Law (NSW) ss 54, 60
Judgment of
G K Burton SC, Senior Member
N M Kennedy, Senior Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – habitability of premises – repair of premises – scope of duty – modification of premises to accommodate disabilities of tenant – scope of remedial orders – applicable principles
Judgment of
G Sarginson, Deputy President
S De Jersey, Principal Member
CIVIL PROCEDURE - hearings – adjournments – grounds for adjournment – medical condition of representative of party – sufficiency of evidence – personal circumstances of representative of party – recent illness of mother - discretion to adjourn – applicable principles – whether refusal to adjourn a denial of procedural fairness
Judgment of
G Sarginson, Deputy President
R C Titterton OAM, Senior Member
APPEALS — appeal from order dismissing application — withdrawal of application — Tribunal made error as to jurisdiction — breach of procedural fairness — utility of appeal
APPEALS — Procedure — Stay pending appeal - Whether appellant’s arguments on appeal have any real prospects of success – Whether balance of convenience favours the grant of a stay – Stay dismissed
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – social housing - loss of quiet enjoyment –actions of neighbouring tenant- whether landlord took all reasonable steps to prevent breach– s 50(2) and (3) Residential Tenancies Act 2010 (NSW)
APPEALS – whether a question of law stated with precision – no question of principle – whether leave to appeal should be granted – no question of principle
Judgment of
D Charles, Senior Member
R C Titterton OAM, Senior Member
COSTS – Civil and Administrative Tribunal Act 2013, s 60 – whether there are special circumstances warranting an award of costs – whether reliance by the appellant on appeal on new evidence, found not to be significant and to have been available at the time of the original hearing, disadvantaged the respondent or breached the appellant’s duty under s 36(3) – whether the appeal was misconceived or untenable– no special circumstances – no costs awarded
PROCEDURAL FAIRNESS – whether by not admitting documents not tendered by appellant’s legal representative the Tribunal denied the appellant procedural fairness EVIDENCE – whether Tribunal made findings of fact without probative evidence NCAT – scope of obligation imposed by Civil and Administrative Tribunal Act 2013 (NSW), s 38(6)(a) “to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings”
Judgment of
A Britton, Deputy President
L Organ, Senior Member
Dr B McPhee, Senior Member
APPEALS – interlocutory decision PRACTICE and PROCEDURE – variation of interlocutory orders COSTS – where substantive appeal rendered nugatory by intervening event (further Tribunal orders)
Judgment of
G K Burton SC, Senior Member
H Woods, Senior Member
APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle COSTS – special circumstances – exercise of discretion - no question of principle
Judgment of
G Blake AM SC, Principal Member
J Gatland, Senior Member
APPEALS — Leave to appeal — Principles governing APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence APPEALS — Procedural fairness
Judgment of
S Westgarth, Deputy President
H Woods, Senior Member
APPEALS – leave - access to information – procedural fairness - jurisdiction – further evidence refused – information provided in full - appeal dismissed
Judgment of
K Robinson, Principal Member
P H Molony, Senior Member
CONSUMER LAW — Consumer guarantees — Action against supplier — Contract relation to the conversion of inclinators for passenger use — Whether a supply of goods or a supply of services — Held contract was for the supply of goods CONSUMER LAW — Enforcement and remedies — Remedies relating to consumer guarantees — Action against supplier of goods — Distinction between the remedies available in respect of a supply of goods and the remedies available in respect of a supply of services WORDS AND PHRASES — “supply of goods” — “supply of services”
Judgment of
D Robertson, Principal Member
R Titterton OAM, Senior Member
APPEAL - question of law - procedural fairness -decision against the weight of evidence - fair and equitable - LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW)
Judgment of
P Durack SC, Senior Member
Dr K M George, Senior Member
COSTS-whether costs orders made in respect of costs at first instance should be set aside-proceedings settled other than in relation to costs-proceedings at first instance not determined on merits but concluded by submission of consent orders-whether Respondent had defended the application unreasonably and/ or whether Respondent had capitulated- application of r38 Civil and Administrative Tribunal Rules.
Judgment of
S Westgarth, Deputy President
D Goldstein, Senior Member
APPEAL – residential tenancy − social housing – alleged breaches of residential tenancy agreement – consent orders made – whether interlocutory or ancillary orders – extension of time to lodge appeal – no error on a question of law – leave to appeal refused
Judgment of
A Bell SC, Senior Member
J Redfern PSM, Senior Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – repair of premises – mould –excessive rent– concession by agent of landlord at hearing – agency – ostensible authority – whether party bound by concession at hearing
APPEALS — Appeal on question of law – Scope of question of law – Failure to give reasons — Adequacy of reasons – Reasons satisfy applicable standard APPEALS — Leave to appeal — Principles governing – Leave to appeal refused CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to fitness for disclosed purpose CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
Judgment of
G Blake AM SC, Principal Member
J McAteer, Senior Member
APPEALS – NSW Civil and Administrative Tribunal – internal appeals – principles governing exercise of the discretion to grant leave to appeal from an internally appealable decision under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) EXPERT EVIDENCE – assumptions on which expert based their opinion FINANCIAL MANAGEMENT – precondition to exercise power to make financial management order s 25G Guardianship Act 1987 (NSW)– whether tribunal is satisfied that the person is not capable of managing their affairs FRESH EVIDENCE – test in Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 – appellant’s proposed evidence could have been obtained with reasonable diligence in the original proceedings and is of no apparent relevance
Judgment of
A Britton, Deputy President
I Coleman SC ADCJ, Principal Member
L Porter, General Member (Community)
APPEAL – residential land lease community – termination of site agreement for serious misconduct – whether Tribunal misapplied s 129(2) of the Residential (Land Lease) Communities Act 2013 – whether there was no evidence to support a finding of fact.
Judgment of
D Ziegler, Senior Member
Dr K George, Senior Member
APPEALS — From exercise of discretion to admit illegally obtained evidence APPEALS — From finding that not in the public interest for Appellant to hold a firearms licence
GUARDIANSHIP — whether the Tribunal misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) — point in time Tribunal is required to form state of satisfaction about whether proposed guardian is able to exercise the functions conferred by the renewed guardianship order PROCEDURAL FAIRNESS — whether the Tribunal failed to give the appellant and his sister a reasonable opportunity to be heard PROCEDURAL FAIRNESS — actual and apprehended bias LEAVE TO APPEAL — principles governing exercise of discretion to give leave to appeal from an internally appealable decision under Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b)
Judgment of
A Britton, Deputy President
L Organ, Senior Member
Dr B McPhee, Senior Member
APPEALS – question of law – denial of procedural fairness – where Tribunal failed to give reasons for refusing an adjournment of proceedings – where the order for rental arrears exceeded the power of the Tribunal
Judgment of
S Westgarth, Deputy President
R C Titterton OAM, Senior Member
REAL PROPERTY – LANDLORD and TENANT – RESIDENTIAL TENANCY – was the written agreement between the parties a residential tenancy agreement – limited Tribunal jurisdiction to make a declaration on that matter – Residential Tenancies Act 2010 (NSW) s 11
Judgment of
G K Burton SC, Senior Member
J Redfern PSM, Senior Member
APPEAL – right of appeal – question of law – leave to appeal STATE TAXES – Land tax – fixed trust – special trust – unit trust – trustee’s right of indemnity and exoneration INTERPRETATION – interpretation of trusts – incorporation of terms – “casuistic” drafting
Judgment of
K Robinson, Principal Member
EA MacIntyre, Senior Member
APPEALS — Procedure — Time limits — Extension of time – Extreme delay — Appellant seeking to file an appeal in 2025 against decisions published in 2016 and 2017 — Belated attempt to appeal due to change of legislation following the delivery of the decisions — Extension of time refused COSTS – Special circumstances — Extreme delay in lodging appeal award of costs — Appeal without substance and misconceived
Judgment of
D Robertson, Principal Member
J Sullivan, Senior Member
LANDLORD and TENANT-residential tenancy-order under s 90 (1) (b) of the Residential Tenancies Act 2010 (NSW) (RTA) to terminate a social housing tenancy- allegation that the tenant intentionally or recklessly caused injury with a knife to an occupier on neighbouring property-Tribunal preferred landlord’s version of events as put forward in witness statements from the alleged victim, his brothers and girlfriend to competing evidence from tenant-whether the relevant event occurred on “neighbouring property” as required by s 90 (1) (b)-whether termination was mandatory or discretionary according to the application of s154D (2) and (3) of the RTA- exercise of the discretion under s154E of the RTA. APPEAL-whether errors of law-whether the Tribunal erred by not applying the Briginshaw principles- whether the Tribunal misconstrued relevant parts of s 154D- proceedings remitted to the Tribunal, differently constituted, for redetermination
Judgment of
P Durack SC, Senior Member
Dr K George, Senior Member
APPEAL – extension of time in which to appeal – exercise of discretion – length of delay – adequacy of explanation for the delay – whether significant new evidence has arisen
APPEALS — Australian Consumer Law — whether BMW vehicle was of acceptable quality — adequacy of reasons — whether failure to exercise jurisdiction or denial of procedural fairness — failure to make material findings — constructive failure to exercise jurisdiction
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
CONSUMER LAW – consumer guarantees – supply of goods – alleged non-fitting tyre rims not fit for specified purpose and not matching description – alleged proxy purchasing service – alleged compliance in sourcing tyre rims with consumer instructions – service not supply of goods – service alleged to have been performed in accordance with instructions – Australian Consumer Law (NSW) ss 55, 56, 60
Judgment of
G K Burton SC, Senior Member
M Tyson, Senior Member
REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property –alleged damage to lot property from alleged breach of duty – measure of damage to lot property when renovations occurred – whether relevant pipes were common property -Strata Schemes Management Act 2015 (NSW) s 106 - Strata Schemes Development Act 2015 (NSW) s 4 COSTS – application of ordinary costs rules – costs follow the event – ordinary basis
Judgment of
G K Burton SC, Senior Member
M Tibbey, Senior Member
Building and Construction – where contract still on foot and construction incomplete – Damages for ongoing loss of interest and lenders charges due to delay – whether within the reasonable contemplation of the parties
Judgment of
S Westgarth, Deputy President
P H Molony, Senior Member
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed
ADMINISTRATIVE LAW — administrative review — approval to remove club licence to new premises –whether decision to impose conditions on licence is an administrative reviewable decision WORDS AND PHRASES — meaning of “in relation to”
Judgment of
A Britton, Deputy President
G Blake AM SC, Principal Member
CONSUMER LAW – Enforcement and remedies – The requirement for the appellant to establish that he was a ‘consumer’ as defined in s79D of the Fair Trading Act 1987 for the Tribunal to have jurisdiction – The requirement for a ‘supplier’ as defined in section 79D of the Fair Trading Act 1987 to have supplied goods or services to the appellant for him to be a ‘consumer’ as defined in section 79D of the Fair Trading Act 1987 - Meaning of ‘direct supplier’ in section 79E(2) of the Fair Trading Act 1987
Judgment of
D Robertson, Principal Member
D Goldstein, Senior Member
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — termination notice for non-payment of rent — relevance of rental bond to determining arrears APPEAL — obligation of party to lodge material relied on — consequences of failure by appellant to lodge transcript or recording of hearing below
Costs – costs of appeal where appeal dismissed – special circumstances established – whether appropriate to make a lump sum order for costs – quantification of lump sum amount – costs awarded
Judgment of
Seiden SC DCJ, Deputy President
H J Dixon SC, Senior Member
LANDLORD and TENANT- residential tenancy- no grounds termination of periodic tenancy – retaliation as a basis for refusal for making a termination order under s 115(1)(b) rather than as a separate claim. APPEALS — Error on a question of law — Procedural fairness — Retaliatory eviction — Issue raised by Tenant at hearing but Tribunal misunderstood that it did not need to be the subject of a separate claim – lost opportunity to have defence heard and determined— Whether denial of procedural fairness
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
APPEAL – Home Building – Australian Consumer Law claims – claims about unconscionable conduct and unfair contract terms – whether Amended Grounds of Appeal raise questions of law – grounds not established – appeal seeks to raise new claims
Judgment of
J Redfern PSM, Senior Member
D Goldstein, Senior Member
LEASES AND TENANCIES – whether notice of termination was retaliatory in part – whether the wrong test under s 115 of the Residential Tenancies Act 2010 (NSW) was applied – whether decision not fair and equitable – whether decision against the weight of evidence – absence of transcript of hearing
Judgment of
S de Jersey, Principal Member
Dr K George, Senior Member
LAND LAW – strata title – meaning of s 226 of the Strata Schemes Management Act 2015 (NSW) APPEALS - whether decision of the Registrar of the Consumer and commercial Division of the Tribunal is an “internally reviewable” decision for the purposes of s 80 of Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior member
CIVIL PROCEDURE – Suppression and non-publication – where Appellant seeks to have publication of decision restricted or her name anonymised – whether it is “desirable” to make orders
Judgment of
G Blake AM SC, Principal Member
J Gatland, Senior Member
APPEALS – questions of law – leave – whether there was a failure to engage with a defence – whether compensation excessive – whether miscalculation of rent reduction - appeal dismissed
Judgment of
K Robinson, Principal Member
Dr K George, Senior Member
APPEALS — Question of law — Procedural fairness — Failure to attend hearing — Appellant claiming that misled by staff of Tribunal Registry to believe that hearing adjourned — Denial of procedural fairness not established without evidence to support explanation for non-attendance LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Condition reports — Fair wear and tear
Judgment of
D Robertson, Principal Member
J McAteer, Senior Member
COSTS - Appeals – whether determination of costs application should be deferred pending determination of costs application in proceedings below COSTS – Appeals - s 60 Civil and Administrative Tribunal Act -Each party to proceedings to pay own costs – whether there are special circumstances warranting an award of costs in the appeal.
BUILDING AND CONSTRUCTION – meaning of the implied warranties under ss 18B(1)(e) and (f) of the Home Building Act 1989 (NSW) – whether expanded scope or application by reason of giving the Home Building Act 1989 (NSW) a purposeful or beneficial interpretation
Judgment of
S De Jersey, Principal Member
R C Titterton OAM, Senior Member
GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether Tribunal satisfied proposed guardian “able to exercise the functions conferred or imposed by the proposed guardianship order” GUARDIANSHIP — whether the Tribunal misapplied s 4(d) of the Guardianship Act 1987 (NSW) — whether Tribunal obliged to give effect to views of the person the subject of a guardianship order LEAVE TO APPEAL — principles governing exercise of discretion to give leave to appeal from decision made by NCAT — whether conclusion that Tribunal was not satisfied that proposed guardian was “able to exercise the functions conferred or imposed by the proposed guardianship order” was against the weight of evidence EXTENSION OF TIME TO APPEAL — Civil and Administrative Tribunal Act 2013 (NSW), s 41 — principles governing exercise of discretion to extend time to appeal
Judgment of
A Britton, Deputy President
S Handebo, Principal Member (Legal)
C M Kennedy, Senior Member (Professional)
APPEALS — Leave to appeal — Principles governing APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence
Judgment of
G K Burton SC, Senior Member
H Woods, Senior Member
LEASES AND TENANCIES – decision not fair and equitable - validity of rent increase – withdrawal of consent for electronic service of notices – daily occupation fee
Judgment of
S de Jersey, Principal Member
Dr K M George, Senior Member
APPEAL – orders for access by landlord to premises – denial of procedural fairness – transcript or sound recording not provided – no evidence of unfairness
Judgment of
K Ransome, Principal Member
J McAteer, Senior Member
Costs – home building – where opposing appeals heard together – where both appeals allowed but only one party substantially successful on a practical analysis – consideration of whether costs should be determined on an issues basis – rejected – costs to follow the event.
APPEAL- allocation of insurance premiums between owners corporations each owning part of the same building- consideration of ss160,161 and 162 of the Strata Schemes Management Act 2015- whether policies compliant with statutory requirements and consequences of noncompliance- relationship between statutory requirements and terms of a strata scheme management statement.
Judgment of
S Westgarth, Deputy President
PH Molony, Senior Member
COSTS – successful appeal against decision at first instance – whether special circumstances – whether unreasonable refusal to accept settlement offer – relevant factors
Judgment of
K Ransome, Principal Member
J Redfern, Senior Member
APPEAL - right of appeal - question of law - factual findings - leave to appeal - reasons DISCRIMINATION - review by Civil and Administrative Tribunal – evidence - proof
Judgment of
K Robinson, Principal Member
EA MacIntyre, Senior Member
BUILDING and CONSTRUCTION – HOME BUILDING – COSTS – Calderbank offers – reasonableness of rejection – APPEALS – challenge to discretionary decision – question of law – errors of law and of fact – re-exercise of discretion
Judgment of
G K Burton SC, Senior Member
H Woods, Senior Member
JUDGMENTS AND ORDERS —— Consent orders- appeal seeks to set aside consent orders made in primary proceedings – lack of proof of circumstances relied upon.
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
REAL PROPERTY – STRATA MANAGEMENT – owners corporation’s strict duty to maintain and repair common property –alleged damage to lot property from alleged breach of duty – measure of damage to lot property when renovations occurred – whether relevant pipes were common property -Strata Schemes Management Act 2015 (NSW) s 106 - Strata Schemes Development Act 2015 (NSW) s 4
Judgment of
G K Burton SC, Senior Member
M Tibbey, Senior Member
APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle – appeals of interlocutory decisions – no question of principle
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior Member
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – whether there was an agreement to grant for value a right of occupation of residential premises - meaning of agreement APPEAL – Question of law – whether reasons adequate
Judgment of
D Robertson, Principal Member
M Tyson, Senior Member
APPEAL- appeal against a decision to refuse to join as respondent the director of a company that had entered into a home building contract- whether s137 of the Home Building Act imposes personal liability on the director.
NCAT – internal appeals from decisions made by the Guardianship Division of the NSW Civil and Administrative Tribunal – principles governing grant of leave to appeal under s 80(2)(b) of Civil and Administrative Tribunal Act 2013 (NSW) NCAT – internal appeals – whether new evidence warrants exercise of the discretion to deal with the appeal by way of new hearing under s 80(3) of Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
S Handebo, Principal Member
Dr M Wroth, Senior Member
APPEALS – whether appeal raised a question of law – no question of principle – whether appeal raises an error warranting a grant of leave – no question of principle – appeals of interlocutory decisions – no question of principle
Judgment of
R C Titterton OAM, Senior Member
J Redfern PSM, Senior Member
APPEAL – Consumer claim – Where respondent reconditioned the appellant’s vehicle engine – Where appellant made a claim against the respondent for subsequent engine failure and damage to transmission – Whether Tribunal failed to afford procedural fairness to the appellant or their expert witness – Whether Tribunal’s decision was against the weight of the evidence as to the cause of the engine failure – No sound recording available from hearing due to technical issues - Role of expert witness representing appellant in the appeal
Judgment of
P Durack SC, Senior Member
J Sullivan, Senior Member
CONSTITUTIONAL LAW — extra-territorial operation of State legislation CONSTITUTIONAL LAW — nature of Burns v Corbett (2017) 265 CLR 304 restriction — whether NCAT in determining applications under the Guardianship Act 1987 (NSW) is exercising judicial or administrative power — whether proceedings in the Guardianship Division of NCAT is a matter between parties STATUTORY CONSTRUCTION — recognition of guardians and financial managers appointed under a corresponding law s 49B Guardianship Act 1987 (NSW) — whether NCAT has power to determine application under Guardianship Act 1987 (NSW) in respect of person subject of a guardianship order made under corresponding law STATUTORY CONSTRUCTION — necessary territorial connection between NSW and person subject of an application made under Guardianship Act 1987 (NSW) PROCEDURAL FAIRNESS — bias — test of apprehended bias, double might test —knowledge to be attributed to hypothetical reasonable lay observer
Judgment of
A Britton, Deputy President
C A Mulvey, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
COSTS - Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – whether costs should be apportioned - costs awarded in favour of successful party
Judgment of
D Robertson, Principal Member
M Deane, Senior Member
LEASES-residential tenancy dispute - claim for compensation for breach of the residential tenancy agreement by alleged wrongful eviction commenced outside the time prescribed for commencing such a claim - additional claim for compensation under s120 (b) of the Residential Tenancies Act 2010 (NSW). APPEALS - Tribunal erred by proceeding to determine the merits of the claim when it had no jurisdiction to do so.
Judgment of
P Durack SC, Senior Member
Dr K M George, Senior Member
APPEAL – administrative review – matter involving dispute between residents of different states – whether denial of procedural fairness in dismissing application for lack of jurisdiction – whether Tribunal required to be satisfied that it otherwise had jurisdiction to determine that matter – consideration of Part 3A of the Civil and Administrative Tribunal Act 2013
Judgment of
K Ransome, Principal Member
G Blake AM SC, Principal Member
CONSUMER LAW – consumer guarantees for legal services – instructions on scope of guilty plea - exclusion of costs assessment matters under Fair Trading Act 1987 (NSW) s 79M
Judgment of
G K Burton SC, Senior Member
P H Molony, Senior Member
APPEALS – appeals from an interlocutory decision to dismiss proceedings for the party’s failure to attend – hearing listed for in-person hearing – legal representative appeared by AVL to seek an adjournment – relevant principles for appeals under s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
S de Jersey, Principal Member
R Titterton OAM, Senior Member
REAL PROPERTY – dividing fences – sufficient dividing fence – placement of fence on or near boundary - survey of boundary – extension of time – alleged negligent or intentional damage – alleged vexatious litigant – alleged res judicata – scope of previous proceedings
Judgment of
R Titterton OAM, Senior Member
G K Burton SC, Senior Member
ADMINISTRATIVE LAW – administrative review – access to government information – freedom of information – unreasonable and substantial diversion of resources APPEALS - Procedural fairness — apprehension of bias – principles - bias not established
Judgment of
G Blake AM SC, Principal Member
M Tibbey, Senior Member
APPEALS – NCAT – appeal on a question of law – 40 purported questions of law – appellant required to particularise questions of law PROCEDURAL FAIRNESS – whether Tribunal failed to engage with a “substantial, clearly articulated argument relying upon established facts” EVIDENCE – whether Tribunal made findings without evidence – whether findings lacked “an evident and intelligible justification” ADMINISTRATIVE LAW – reasons for decision – whether Tribunal failed to give adequate reasons for its decision to make an initial guardianship order for term of 3 years PROCEDURAL FAIRNESS – bias – apprehended bias – knowledge to be attributed to the hypothetical lay observer APPEALS – interlocutory decisions – principles governing leave to appeal
Judgment of
A Britton, Deputy President
C A Mulvey, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
APPEALS — adjournment – application for adjournment by the appellant - principles – application dismissed APPEALS — bias — application for recusal — principles – application dismissed APPEALS — time specified by the Appeal Panel for the appellant to obtain the consent of the Supreme Court to continue the appeal against the first respondent which is in liquidation – application for an extension of time by the Appellant – application dismissed
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – alteration of premises by tenant – without consent of landlord – compensation payable to landlord – no error of law established – no grounds to grant leave to appeal established
Judgment of
G Sarginson, Deputy President
J Gatland, Senior Member
APPEALS - Error on question of law - denial of procedural fairness - leave to appeal -decision not fair and equitable - decision against weight of evidence - significant new evidence not reasonably available at the hearing - withdrawal of admission. BUILDING AND CONSTRUCTION - interpretation of residential building work re flooring under s 2(3)(k) of Schedule 1 to the Home Building Act 1989 (NSW) - work order or money order having regard to s 48MA of the Home Building Act 1989 (NSW) - acceptance of expert evidence
Judgment of
S De Jersey, Principal Member
H Woods, Senior Member
APPEAL - right of appeal - question of law - leave to appeal PRIVACY - aggrieved person - internal review - review by Civil and Administrative Tribunal
Judgment of
R Dubler SC, Senior Member
EA MacIntyre, Senior Member
Costs – where claim for $484,347 made under the Home Building Act 1989 dismissed as out of time – ancillary decision - where appeal dismissed - costs on appeal under r 38A of the Civil and Administrative Tribunal Act follow the event.
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 51(3)(b) — Compensation for failure to leave premises as nearly as possible in the same condition, fair wear and tear excepted LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 63 — Compensation for loss of amenity, loss of enjoyment, distress, disappointment and inconvenience arising from failure of landlord to keep premises in good repair
Judgment of
D Robertson, Principal Member
J Connelly, Senior Member
APPEAL – LEASES AND TENANCIES – whether substantial miscarriage of justice – error of law – reduction or withdrawal of goods, services or facilities – rent reduction – landlord’s obligation to repair and maintain – compensation
Judgment of
Dr K M George, Senior Member
J Ledda, Senior Member
PRACTICE AND PROCEDURE – correction of obvious errors in the text of a decision pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 – inconsistency between the stated decision and the stated reasons – decision amended.
LEASES AND TENANCIES — termination of periodic residential tenancy agreement under former s 85 of Residential Tenancies Act 2010 (NSW) —when termination notices are retaliatory under s 115 APPEALS — utility of internal appeal — whether appeal lacks utility if Appeal Panel cannot provide alternative to remedy abandoned by appellant
Judgment of
Dr R Dubler SC, Senior Member
J Ledda, Senior Member
CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — Supply of Services - Jurisdiction and powers CONTRACT– contract provided for payment to be postponed until given event - contract terminated when partly performed but before payment due - whether payment for performance accrued and recoverable
Judgment of
P H Molony, Senior Member
N Kennedy, Senior Member
APPEALS — procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – extension of time refused
Judgment of
P H Molony, Senior Member
N Kennedy, Senior Member
PRACTICE AND PROCEDURE – representation – section 45 of the Civil and Administrative Tribunal Act 2013 – legal representation – Leave to appeal an interlocutory decision
Judgment of
A Bell, SC Senior Member
D Goldstein, Senior Member
COSTS – Civil and Administrative Tribunal Act 2013 (NSW) s 60(3)(c) and (e) - special circumstances – relative strengths of claims made by the parties – appeal lacking in substance
Judgment of
D Robertson, Principal Member
R C Titterton OAM, Senior Member
APPEAL – Administrative Law – Government information – cabinet information – construction of cl 2, Sch 1 to the Government Information (Public Access) Act 2009 (NSW) – principles of statutory interpretation
Judgment of
Seiden SC DCJ, Deputy President
EA MacIntyre, Senior Member
COSTS – costs of appeal from decision of Consumer and Commercial Decision – appeal dismissed – respondent’s application for costs of appeal –special circumstances not required – where respondent was successful in respect of six out of seven grounds of appeal - whether appropriate to make a lump sum order for costs sought – quantification of the lump sum amount.
Judgment of
P Durack SC, Senior Member
R Perrignon, Senior Member
COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – appeal from proceedings at first instance involving Australian Consumer Law claims – unsuccessful stay application – appeal successful – claim for lump-sum fixed costs.
APPEAL – Australian Consumer Law – guarantees in relation to services - duty of care and skill – obligations under contract in relation to unsafe weather – post-hearing evidence – material issues raised – denial of procedural fairness PROCEDURE – summary dismissal and issue of summonses – applications refused
Judgment of
J Redfern PSM, Senior Member
G Burton SC, Senior Member
BUILDING AND CONSTRUCTION-construction of clause concerning the fall to waste in bathrooms in the now superseded AS 3740-2010. APPEALS-point of law about construction of clause in an Australian Standard-construction contended for by the Builder rejected-relevance to construction of an article in the ABCB Connect newsletter- appeal dismissed
ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal —whether Tribunal has administrative review jurisdiction over certain social housing decisions APPEALS — jurisdiction of Appeal Panel of NSW Civil and Administrative Tribunal — whether Appeal Panel has internal review jurisdiction over decisions of registrars concerning the issue of summonses — whether Appeal Panel can grant stays of decisions over which it does not have internal appeal jurisdiction
Judgment of
D Robertson, Principal Member
J Ledda, Senior Member
Environment and planning – fences and boundaries – “dividing fence” – definition of fence – fence attached to retaining wall or wooden structure after construction
Judgment of
K Ransome, Principal Member
H J Dixon SC, Senior Member
Appeal – whether Appellant is a disqualified person under the Firearms Act 1996 (NSW) – consideration of whether an offence against the Crimes Act 1900 (NSW), s 316 is one involving dishonesty.
Judgment of
S Westgarth, Deputy President
J Gatland, Senior Member
Costs – self-represented parties, claims for disbursements – even if special circumstances based on Respondent’s conduct exists, unrelated to disbursements claimed
Judgment of
S Westgarth, Deputy President
H J Dixon SC, Senior Member
APPEAL – whether reasons were inconsistent with orders-whether decision was not fair and equitable or against the weight of evidence- no basis to grant leave.
Judgment of
S Westgarth, Deputy President,
R Alkadamani, Senior Member
LAND LAW – Strata title – whether strata scheme functioning satisfactorily – whether the owners corporation had failed to perform one of its duties – whether to appoint compulsory strata managing agent
Judgment of
G Blake AM SC, Principal Member
R Titterton OAM, Senior Member
APPEALS — questions of law — Government Information (Public Access) Act 2009 (NSW) — misconstruction of Act — failure to apply correct legal principles — application of wrong legal principles — adequacy of reasons — extent of duty of NCAT to assist self-represented party — no breach of procedural fairness requirements — admission of further evidence — appeal allowed ADMINISTRATIVE LAW – whether government information held by agency — sufficiency of search — excluded information in respect of which there is a conclusive presumption against disclosure — client legal privilege — legal professional privilege — identification of client and privilege holder — consideration of waiver of privilege — Government Information (Public Access) Act 2009 (NSW) Sch 1, cl 5(2) mandatory requirement
Judgment of
Armstrong J, President
K Robinson, Principal Member
APPEAL – Administrative Review – Firearms – Revocation of licence – Expired conditional release order (CRO) – Utility – Appeal ground moot – No appeal ‘on’ a question of law – Leave to appeal refused APPEAL – Administrative Review – Firearms – Revocation of licence – Public interest ground – Cannabis use – Medical prescription – Whether virtually no risk to public safety – Whether Tribunal reached unreasonable conclusion
Judgment of
Seiden SC DCJ, Deputy President
P H Molony, Senior Member
APPEALS – administrative review of an administratively reviewable decision – whether the Tribunal misdirected itself as to its authority to review the internal review decision of the respondent to revoke the appellant’s firearms licence – the proper construction and application of section 53(5) and (5A) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) – whether on internal review under section 53 of the ADR Act it was open to the internal reviewer to substitute a decision to impose a condition on the appellant’s licence (section 19(1) of the Firearms Act 1996) with a decision to revoke the appellant’s firearms licence (section 24 of the Firearms Act 1996), or was it a new decision for which the appellant had a right to seek internal but not duly applied for such a review (Administrative Decisions Review Act 1997 section 55(3)). APPEALS – a question of law – self-represented appellant – Tribunal identified the wrong issue and asked the wrong question – conflation of the fit and proper person test and the public interest test (Firearms Act 1997 (NSW) sections 11(3)(a), 11(7), 24(2)(c) and (d) and Firearms Regulation 2017 (NSW) clause 20).
Judgment of
S Higgins, Senior Member
R Perrignon, Senior Member
APPEAL – Home Building dispute – practical completion – construction of cl 20 of the Master Builders Association NSW Costs Plus (Residential) contract -– placement of furniture in building site – whether deemed occupation – rectification of roof defects – evidence overlooked – leave to amend grounds of appeal
Judgment of
P H Molony, Senior Member
J Redfern PSM, Senior Member
APPEALS – whether the reasons of the Tribunal at first instance were inadequate – whether the Tribunal erred in its application of s 18E of the Home Building Act 1989 (NSW) – whether the Tribunal erred in its construction and application of the Building Code of Australia and Australian Standard 3740 – whether the Tribunal denied the appellant procedural fairness – whether the Tribunal “failed in its application” of s 48MA of the Home Building Act 1989 (NSW).
Judgment of
R C Titterton OAM, Senior Member
D Goldstein, Senior Member
LAND LAW — strata title — powers of owners corporation — approvals under by-laws for parking on common property — whether parking prohibitions and restrictions based on blanket vehicle classifications instead of size are permissible APPEALS — appeal as of right for failure to respond to substantial, clearly articulated arguments — leave to appeal because decision not fair and equitable or against weight of evidence — whether special circumstances warrant award of costs in the appeal
Judgment of
H J Dixon SC, Senior Member
J Ledda, Senior Member
APPEAL – leave to appeal – interlocutory decision – discretionary decision – House v The King principles – adequate reasons – breach of procedural fairness – constructive failure to exercise jurisdiction INTERIM APPLICATION – extension of time – delay – medical evidence – prejudice – substantial merit
Judgment of
Seiden SC DCJ, Deputy President
EA MacIntyre, Senior Member
APPEALS – order for adjournment to group list and notation of an agreement between the parties to pay instalments of rent – whether an internally appealable decision – whether leave to appeal should be granted. APPEALS – order noting written agreement of parties for payment of rental arrears exceeding jurisdictional limit of $15,000 – non-enforceable notation – not a decision capable of internal appeal. APPEALS – appeal of termination order – effect of eviction under warrant for possession executed before appeal hearing – grounds of appeal for remaining orders.
APPEAL — questions of law — procedural fairness. LEASES AND TENANCIES — whether agreement is a residential tenancy agreement covered by the Residential Tenancies Act 2010 (NSW).
Judgment of
D Ziegler, Senior Member
Dr K George, Senior Member
COSTS –– whether there are “special circumstances” to warrant a cost order under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – death of the subject person rendered appeal futile – respondent’s deliberate failure to inform appellants of the subject person’s death before the appeal hearing unnecessarily disadvantaged the appellants – respondent’s conduct constitutes special circumstances warranting an award of costs COSTS –– application for indemnity costs – principles governing exercise of discretion under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order for indemnify costs – respondent’s deliberate failure to inform appellants of the subject person’s death before appeal hearing constituted a “relevant delinquency” COSTS –– application for award of costs in a fixed sum – principles governing exercise of discretion to fix costs under s 60(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
L Organ, Senior Member
C Kennedy, General Member
COSTS - Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – whether costs should be apportioned - costs awarded in favour of successful party.
APPEALS- agreement on appeal that small additional amount should be paid to the appellant-appeal dismissed in respect of orders sought on appeal for more significant amounts.
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
GOVERNMENT INFORMATION — onus — application of s 105 of the Government Information (Public Access) Act 2009 (NSW) — whether applicant bears a “practical onus” to establish that requested information exists and is held by the agency ADMINISTRATIVE REVIEW — whether Tribunal has power to review a decision that is not the subject of an application for administrative review made under s 100 of the Government Information (Public Access) Act — whether parties can confer jurisdiction on the Tribunal by consent PROCEDURAL FAIRNESS — apprehended bias — bias by association — whether Member’s previous association with a party’s legal representative gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — apprehended bias — bias by conduct — whether Member’s conduct in hearing gives rise to a reasonable apprehension of bias PROCEDURAL FAIRNESS — hearing rule — whether by permitting party to amend documents the Tribunal failed to give a party a reasonable opportunity to be heard
REAL PROPERTY – HOME BUILDING – measure of damages for breach of contract – overheads and general operating expenses – whether required to be included – gross profit or net profit - obligation to identify components in issue – issue sought to be raised on appeal but not at primary hearing – Civil and Administrative Tribunal Act 2013 (NSW) ss 36, 38
Judgment of
G Burton SC, Senior Member
N Kennedy, Senior Member
CONSUMER LAW – failure to provide transcript or written reasons – uncertainty whether jurisdictional facts the subject of findings – error of law requiring remitter
Judgment of
G K Burton SC, Senior Member
P H Molony, Senior Member
APPEAL- application to adjourn hearing refused-appeal against interlocutory decision-whether leave to appeal should be granted-whether appellant was denied procedural fairness or whether appellant had a reasonable opportunity to apply to amend the timetable for service of its evidence and/or apply to adjourn the hearing.
Judgment of
S Westgarth, Deputy President
R Alkadamani, Senior Member
COSTS – whether special circumstances established – no question of principle APPEALS —appeals in respect of matters of practice and procedure — no question of principle
Judgment of
R C Titterton OAM, Senior Member
P H Molony, Senior Member
APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – extension of time refused APPEALS — right of appeal — scope of right — question of law – No error on a question of law established — leave to appeal — principles governing – no prospect of success
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – excessive rent increase application – s 44(1)(a) Residential Tenancies Act 2010 (NSW) – provision of written residential tenancy agreement – conduct of agent of landlord – no error on a question of law established – no grounds for leave to appeal established
Judgment of
G Sarginson, Deputy President
S Hennings, Senior Member
APPEALS — application for extension of time to lodge an appeal — whether decision of NSW Civil and Administrative Tribunal under Residential Tenancies Act 2010 (NSW) precluded by res judicata or issue estoppel
Judgment of
Dr K M George, Senior Member
J Ledda, Senior Member
APPEALS — Procedure — Further evidence on appeal - Appellant made application for the issue of a summons for a named person to give evidence and produce documents – Application dismissed