Recent decisions for Civil and Administrative Tribunal (Appeal Panel)

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed

Catchwords:

APPEAL – adjournment of hearing - procedural orders

Catchwords:

COSTS – application to vary costs order by the respondent – application dismissed

Catchwords:

COSTS – interlocutory appeal against a stay order made in the Administrative and Equal Opportunity Division – each party to pay their own costs – s 60 of the Civil and Administrative Tribunal Act 2013

Catchwords:

PRACTICE AND PROCEDURE — Application for recusal of judge — apprehended bias — actual bias

Catchwords:

PRACTICE AND PROCEDURE – improper constitution of tribunal at first instance – decision vitiated by jurisdictional error – decision set aside APPEAL – Anti-Discrimination Act 1977 (NSW) –defence to complaint invokes federal jurisdiction – Tribunal has no jurisdiction to resolve

Catchwords:

ENVIRONMENT AND PLANNING — Fences and boundaries — Dividing Fences Act 1991 (NSW) – Renewal of proceedings – Whether fence constructed in substantial compliance with orders of Tribunal ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Procedural fairness – Whether appellant denied procedural fairness when Tribunal reserved decision and directed the filing of expert reports

Catchwords:

APPEALS – internal appeal under s80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” - questions of law – applying wrong principle of law –failure to take into account relevant evidence – failure to give proper reasons

Catchwords:

APPEALS — Strata title – whether owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property – whether managing agent should be compulsorily appointed – whether wrong principle of law applied – whether leave should be granted – appeal filed out of time

Catchwords:

APPEALS – from decision of NSW Civil and Administrative Tribunal (NCAT) to reappoint Public Guardian as guardian – no error on question of law – leave to appeal refused – no obvious factual error or unorthodox approach to fact-finding – no other basis on which leave should be granted STATUTORY CONSTRUCTION – whether NCAT misconstrued ss 15(3) and 17 of the Guardianship Act 1987 (NSW) – whether NCAT applied a wrong principle of law when appointing Public Guardian GUARDIANSHIP – whether NCAT failed to apply s 4 of the Guardianship Act 1987 (NSW) – whether NCAT failed to apply correct legal test when appointing Public Guardian PROCEDURAL FAIRNESS – whether NCAT acted in a procedurally unfair manner in conduct of hearing – no procedural fairness breach established – whether NCAT demonstrated actual or apprehended bias – no allegation of bias established

Catchwords:

APPEAL - Residential Tenancies Act 2010 (NSW) – termination for non-payment of rent - transcript or sound recording not provided - leave to appeal refused

Catchwords:

ADMINISTRATIVE LAW — refusal to renew a contractor licence under the Home Building Act 1989 (NSW) — effect of recent convictions for failing to report contact with children on applicant’s fitness and propriety — whether Tribunal misconstrued statute — extent to which Tribunal may go behind criminal convictions and sentences

Catchwords:

LAND LAW — Strata title — By-laws – maintenance and repair of lot property and common property – rights and obligations of lot owner – effect of special by-law APPEALS –whether any error on a question of law–- appeal allowed for procedural unfairness- remitted to Tribunal for redetermination

Catchwords:

APPEALS – question of law – no question of principle – leave to appeal – no question of principle

Catchwords:

LAND LAW — Strata title — By-laws - Appeal from order of Tribunal dismissing an application that a by-law be declared invalid by reason of being harsh, unconscionable or oppressive — No question of principle

Catchwords:

APPEALS – questions of law – leave to appeal – constructive failure to exercise jurisdiction – application of wrong legal principle – errors of mixed fact and law CONSUMER LAW – s 54 Australian Consumer Law 2010 (NSW) – water ingress into vehicle – manufacturing defect – subsequent repairs under warranty – causation – principles applicable CONSUMER LAW – s 60 Australian Consumer Law 2010 (NSW) – performance of repairs – scope and extent of duty CONSUMER LAW – s 272 Australian Consumer Law 2010 (NSW) – principles applicable CONSUMER LAW – Bailment – duty of a bailee – scope and extent of duty

Catchwords:

APPEALS – costs– special circumstances established – out of the ordinary - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – baseless appeal unsupported by evidence

Catchwords:

LAND LAW -strata titles - dispute between lot owner and owners corporation about the amount of the lot owner’s contribution and payment of interest-claims by lot owner for orders under s 85 (8) and s 87 (1) of the Strata Schemes Management Act 2015 (NSW)-whether s 87 (1) gives power to the Tribunal to vary the single lot owner’s contribution due to reasons peculiar to lot owner - claim that strata manager should be removed. APPEALS – contention of bias not established - no appealable error shown in respect of substantive claims - consideration of adequacy of reasons where the Tribunal states that it adopts the submissions of the owners corporation - appealable error established in respect of order made by the Tribunal that the appellant pay the respondent’s costs of the primary proceedings.

Catchwords:

APPEALS – referral of question of law to the Supreme Court – question of law arising in proceedings – referral not made

Catchwords:

APPEALS — whether Tribunal erred in dismissing appellant’s application for review pursuant to Administrative Decisions Review Act 1997 APPEALS —appeals in respect of matters of practice and procedure — no question of principle

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law LAND LAW - Strata title – Whether the owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property - Whether the owners corporation is liable to a lot owner for damages for temporary accommodation expenses for breach of statutory duty – Whether temporary accommodation costs and loss of amenity damages were a foreseeable loss suffered by the lot owner – Whether the Tribunal should have exercised the power to remove a lot owner as a member of the strata committee of the owners corporation - Whether the Tribunal had power to restrain a lot owner from acting as a member of the strata committee or as an officer of the owners corporation

Catchwords:

COSTS – special circumstances established – out of the ordinary – not exceptional - s 60 Civil and Administrative Tribunal Act 2013 (NSW) – fixed sum awarded – party/party costs – appeal without merit – arguably weak

Catchwords:

BANKRUPTCY — Proceedings previously commenced by bankrupt — Whether administrative review proceedings in the Tribunal constitute an “action” for the purposes of s 60 of the Bankruptcy Act 1966 (Cth) — Abandonment

Catchwords:

APPEALS – Tribunal powers – control of proceedings – where appellant is a maximum security inmate at Goulburn Correctional Centre – where appellant seeks additional out-of-cell computer access including during lock-ins to prepare for the appeal – relevant principles – application granted in part and otherwise dismissed

Catchwords:

COSTS – no question of principle

Catchwords:

EVIDENCE – mistake of fact – finding without evidence suitability of private manager PROCEDURAL FAIRNESS – Civil and Administrative Tribunal Act 2013 (NSW), ss 38(5), 38(6)(c) – whether Tribunal failed to afford the appellant a reasonable opportunity to respond to adverse evidence – whether by imposing limits on the time available to the appellant to make submissions the tribunal failed to afford the appellant a reasonable opportunity to put her case

Catchwords:

APPEALS – leave to appeal – no question of principle – extension of time – no question of principle

Catchwords:

COSTS – s 60 Civil and Administrative Tribunal Act 2013 (NSW) – special circumstances – long delay in filing appeal – lack of prospects of success – discretion to make a costs order – whether discretion should be exercised in favour of making a costs order

Catchwords:

LANDLORD AND TENANT – residential tenancy – s 115 Residential Tenancies Act 2010 (NSW) – whether notice of termination was retaliatory APPEAL – procedural fairness alleged but not established – all other grounds of appeal only raised questions of fact – no plain error established and not shown that Tribunal’s factual conclusions were more than arguably wrong

Catchwords:

APPEALS – costs – r 38 Civil and Administrative Tribunal Rules 2014 (NSW) - proceedings settled by consent orders – no hearing on the merits – applicable costs principles

Catchwords:

APPEALS – application to reopen appeal - power of the Appeal Panel to reconsider original costs decision in the absence of an appeal – application dismissed COSTS – application to vary costs order by the respondent – application dismissed

Catchwords:

APPEALS – internal appeal under s80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” - questions of law – “no evidence” – “unreasonableness” – procedural fairness – extension of time – whether to grant leave to extend time – whether reasonable chance of success.

Catchwords:

APPEAL- contract for provision of services- no reliable record provided for the reasons given orally at first instance- both parties at fault-whether deposit should be retained or returned in full or in part- other claims for compensation.

Catchwords:

LEASES AND TENANCIES – residential tenancy – landlord’s claim for end of tenancy compensation and payment of rental bond dismissed APPEALS – whether decision against weight of evidence – whether decision not fair and equitable – whether there is significant new evidence not reasonably available – leave to appeal refused – no issue of principle

Catchwords:

CONSUMER LAW – consumer guarantee in s 60 of the Australian Consumer Law (NSW) in respect of services – services in the rebuild of a car engine – competing expert evidence as to cause of engine failure APPEALS – leave to appeal required – application of leave to appeal principles – Tribunal preferred respondent’s expert to the appellant’s expert – appellant seeking to reargue the merits with the assistance of new evidence- no point of principle – new evidence not shown to be not reasonably available at the time of the hearing – not shown that Tribunal’s factual conclusions were more than arguably wrong

Catchwords:

APPEAL – Review under Taxation Administration Act 1996 (NSW) – Whether Tribunal exercising judicial or administrative power TAXES AND DUTIES – Dutiable transactions – Exemption claimed under Commonwealth law – Section 90 of the Family Law Act 1975 (Cth) – Whether Tribunal bound by High Court authority when determining an administrative review – Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 applied

Catchwords:

APPEAL – directions at first instance for the lodgment of documents and submissions on costs - whether an internally appealable decision – whether leave to appeal should be granted.

Catchwords:

LICENSING – whether the Tribunal erred in confirming the revocation of the Appellant’s firearm licence – whether appeal grounds raise questions of law – whether leave should be granted – whether the Tribunal failed to take into account relevant considerations, made findings without evidence and whether the Tribunal misapplied the law

Catchwords:

APPEAL – error on a question of law – Residential Tenancies Act 2010 (NSW) – compensation – continuing breach – failure to repair defects existing at commencement of tenancy – rent reduction for withdrawal or reduction of goods, services or facilities

Catchwords:

APPEALS — Costs — whether there are special circumstances

Catchwords:

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 guardianship order GUARDIANSHIP — whether in appointing the Public Guardian the Tribunal failed to have regard to the views of the Daughter as required by s 4(d) of the Guardianship Act 1987 (NSW) PROCEDURAL FAIRNESS — whether the Tribunal failed to give the appellant a reasonable opportunity to respond to adverse material — whether Tribunal was obliged to disclose its proposed conclusions

Catchwords:

APPEAL – Denial of procedural fairness – issue not raised with parties during hearing – failure to provide opportunity for submissions APPEAL – Claim raised by applicant not considered CONSUMER LAW – Limitation periods – Fair Trading Act 1987 (NSW), s 79L(1)(a) considered

Catchwords:

STATUTORY INTERPRETATION — meaning of definition of “tow truck” in Tow Truck Industry Act 1998 (NSW) — effect of expression “used or operated for the purposes of towing motor vehicles” in definition CIVIL PROCEDURE — proper respondent where administratively reviewable decision made by delegate

Catchwords:

APPEAL – questions of law - refusal of adjournment – whether denial of procedural fairness – application of consumer law – fresh evidence additional material refused

Catchwords:

LEASES AND TENANCIES –delay in filing appeal – - extension of time application - decision not fair and equitable – Tribunal failed to take into consideration rent arrears in making rent refund order

Catchwords:

COSTS – whether special circumstances exist – whether discretion to make a costs order ought be exercised

Catchwords:

APPEALS — right of appeal — scope of right — error of law – No error on a question of law established APPEALS — leave to appeal — principles governing – leave refused

Catchwords:

GUARDIANSHIP — whether Tribunal failed to consider evidence or considered irrelevant evidence. PROCEDURAL FAIRNESS — whether unanticipated presence of party denied procedural fairness to another party; whether the applicant was able to respond to a document provided days before the hearing.

Catchwords:

APPEALS: Application for leave to appeal from findings of fact

Catchwords:

CONSUMER LAW-whether breach of statutory guarantees in the Australian Consumer Law (NSW) for the supply of services in rebuilding a car engine-engine subsequently failed-failure to prove case-claimant’s expert evidence did not establish that the respondent was responsible for the cause of the engine failure. APPEALS-whether alleged errors of law made out-alleged failure to consider some of appellant’s claims-whether Tribunal overlooked material evidence-no appealable error established.

Catchwords:

LAND LAW — Strata titles — legality of by-laws — whether one by-law was invalid because it was made beyond power — whether another by-law was void for uncertainty APPEALS — errors of law — new points of law permitted to be raised on appeal

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence APPEALS — Leave to appeal — Principles governing – leave to appeal granted BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claim by owner against builder – Claim by builder against owner for money owing under contract

Catchwords:

APPEALS – Residential Tenancies Act 2010 (NSW) – rent arrears – res judicata

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law LAND LAW — Strata title – Whether the owners corporation breached the statutory duty to properly maintain and keep in a state of good and serviceable repair the common property – Whether the owners corporation is liable to a lot owner for damages for loss of rent for breach of statutory duty and in nuisance – Whether the owners corporation is liable to a work order to repair the common property and lot of the lot owner

Catchwords:

APPEALS – Civil and Administrative Tribunal - privacy – health records - s500(2) Corporations Act - stay as a result of party in liquidation – no merit to grounds

Catchwords:

APPEAL — Residential Tenancies Act 2010 (NSW) — furniture rental bond — inconsistent term

Catchwords:

APPEAL – Whether failure to afford procedural fairness – whether significant new evidence not reasonably available at the hearing

Catchwords:

COSTS – costs application by the respondent against non-parties – principles – appeal lodged by non-parties - withdrawal of appeal by the non-parties - no hearing on the merits – costs application dismissed

Catchwords:

GUARDIANSHIP — whether Tribunal failed to consider evidence - whether guardian was able to exercise the services function (s 17(1)(c) of the Guardianship Act 1987 (NSW)) EVIDENCE — no evidence - whether no evidence to support finding that guardian was not able to exercise the services function PROCEDURAL FAIRNESS — whether by conducting a hearing in the absence of the person the subject of the application for review of the guardianship order the Tribunal failed to afford that person procedural fairness PROCEDURAL FAIRNESS — whether the Tribunal gave the guardian a reasonable opportunity to present his case and to respond to allegations CONSTITUTION OF TRIBUNAL — whether the Tribunal was constituted in accordance with Civil and Administrative Tribunal Act 2013 (NSW), Sch 6 cl 4(1).

Catchwords:

APPEALS – application to adjourn final hearing

Catchwords:

APPEALS – whether orders expressed by Tribunal to be consent orders were in fact consent orders

Catchwords:

ADMINISTRATIVE LAW-administrative review of appellant’s decision concerning access to parts of health records - redacted information not disclosed to the respondent - whether redacted information contained personal information of third parties within the meaning of clause 3(a) of Table 14 in section 14 of the Government Information (Public Access) Act 2009 - whether redacted information fell within clause 3(f) of this Table - redacted information consisted of opinions, concerns and knowledge about the respondent communicated to employees of the appellant. APPEAL - application for Appeal Panel to recuse itself refused - actual bias – apprehended bias whether the decision concerning cl 3 (a) was legally unreasonable - whether other grounds of appeal established.

Catchwords:

APPEAL – HOME BUILDING ACT-no issue of principle – reference to legislative preference for rectification work to be carried out by the responsible party

Catchwords:

APPEAL- whether an application under s 149(1)(c) of the Strata Titles Management Act must be brought within the time of 28 days provided for by r 23(3)(b) of the Civil and Administrative Rules

Catchwords:

LANDLORD AND TENANCY - whether leave to appeal should be granted – no basis for the grant of leave made out – whether the Tribunal failed to afford the Appellant procedural fairness – no procedural unfairness made out

Catchwords:

APPEAL – where Tribunal summarily dismissed application for administrative review – whether leave should be granted to appeal from interlocutory decision

Catchwords:

GOVERNMENT INFORMATION-whether unredacted version of COPS report with respect to an event concerning a camera in the male toilets of a café in Sydney should be disclosed to the appellant in response to his access application under the Government Information (Public Access) Act 2009 (NSW)-whether the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure APPEALS-no error of law-no grounds for leave to appeal established

Catchwords:

Appeal – Residential Tenancy Agreement – dispute over bond – procedural unfairness by refusal to give weight to photographs – Appellant suffered no adverse consequences having regard to landlord’s evidence

Catchwords:

APPEAL – surcharge land tax – primary liability accepted – discretion to remit interest on reassessment under s 25 of the Taxation Administration Act 1996 (NSW)

Catchwords:

Appeal – consumer claim – Australian Consumer Law – major failure – remedies available to consumer

Catchwords:

ADMINISTRATIVE LAW – firearms – objects of legislation – public interest test – public safety test

Catchwords:

APPEAL – Home Building Act 1989 (NSW) – contract – form of contract – enforceability of contract – repudiation – insurance – effect of failure to insure APPEAL – Parties – Joinder – party at first instance not named as respondent on appeal – proper and necessary party LEAVE TO APPEAL – Appeals from the Consumer and Commercial Division – construction and application of cl 12, Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – question of law – fair and equitable – against the weight of evidence – significant new evidence

Catchwords:

REAL PROPERTY – STRATA MANAGEMENT – challenge to air conditioning by-law – Strata Schemes Management Act 2015 (NSW) s 149

Catchwords:

RESIDENTIAL TENANCY – the tenant was resident in New South Wales and the landlord resident overseas – the Tribunal wrongly determined that the Tribunal had no jurisdiction on the basis that it was exercising federal jurisdiction – no federal jurisdiction arises where the Tribunal is dealing with one party resident in New South Wales and the other party is overseas

Catchwords:

APPEAL – interlocutory decision – application for stay – whether proper regard had to a mandatory consideration – meaning of the public interest

Catchwords:

APPEALS – procedure – time limits – application to extend time to lodge an appeal – exercise of discretion – reason for delay – prospects of success on appeal – grounds of appeal – prejudice – actual bias – apprehended bias – denial of procedural fairness ADMINISTRATIVE LAW – administrative review – Government Information – whether there is an overriding public interest against disclosure – balancing the public interest

Catchwords:

Costs - rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 – appeal allowed - costs of appealed proceedings to be costs in the cause on rehearing – costs of appeal to follow the event – measure of costs recoverable by self-represented parties –where leave to be legally represented not sought or obtained – discretion to make costs orders – meaning of disbursements and out of pocket expenses.

Catchwords:

APPEALS — home building — exercise of discretion — adequacy of evidence APPEALS — Procedure — Stay pending appeal — abuse of process — relitigating interlocutory application — oppressive — contrary to administration of justice

Catchwords:

APPEAL – Administrative review – Jurisdiction – Notice of suspension of firearms licence – No expiry date on Notice – Whether invalid firearms licence suspension notice can or does amount to revocation notice – Tribunal’s jurisdiction to administratively review purported decisions

Catchwords:

PRACTICE AND PROCEDURE – Civil and Administrative Tribunal – Civil and Administrative Tribunal Regulation 2022 cl 9 – Extension of time to file application to set aside decision made in the absence of a party

Catchwords:

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

Catchwords:

APPEALS — Adequacy of reasons – findings on material questions of fact – reasoning process APPEALS — Application of wrong principle - “copy access” and “view access”

Catchwords:

CIVIL PROCEDURE — protective jurisdiction — appeals from Guardianship Tribunal CIVIL PROCEDURE — time — extension of time APPEALS — from finding of fact — function of Appeal Panel

Catchwords:

APPEAL — dividing fence — renewal proceedings

Catchwords:

BULIDING AND CONSTRUCTION – appeals on a question of law – whether the Tribunal erred in law in finding that the floorboards were installed without due care and skill by proceeding as if the content of the obligation of due care and skill was determined by the content of an installation guide for the floorboards - whether Tribunal erred in finding that builder’s expert made a concession at the Tribunal hearing

Catchwords:

APPEAL - consumer claim - major defect - insufficient evidence - late evidence - no error of law - no ground warranting granting leave to appeal

Catchwords:

ADMINISTRATIVE LAW – scope of power to set aside administrator’s decision and remit matter for reconsideration

Catchwords:

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)

Catchwords:

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether “special circumstances” warrant an award of costs

Catchwords:

ADMINISTRATIVE LAW – appeal on a question of law – Security Industry Act 1997 (NSW) – application for security industry licence – whether conviction for perjury under s 703(1) of the Criminal Code 2002 (ACT) is a conviction for an offence involving “dishonesty” WORDS AND PHRASES – “an offence involving fraud, dishonesty or stealing”

Catchwords:

REAL PROPERTY – RETAIL LEASES – exercise of option to renew and lease then terminated by lessor - alleged breaches of covenant by lessor and lessee – security deposit

Catchwords:

APPEAL – RESIDENTIAL TENANCY - No issue of principle

Catchwords:

COSTS-respondent’s application for 50% of its costs of appeal-appeal from decision by the Tribunal in proceedings referred to Tribunal by an adjudicator in which the Tribunal has no power to award costs- appeal also concerned with some matters falling within the original jurisdiction of the Tribunal-appeal unsuccessful on all matters except in relation to a costs order made by the Tribunal -special circumstances for making a costs order required to be established as provided for in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW)-no special circumstances shown.

Catchwords:

ADMINISTRATIVE LAW – appeal against decision to stay of decision to cancel strata management corporate and individual licences under the Property and Stock Agents Act 2002 – whether Tribunal had regard to mandatory consideration under s 60(3) of the Administrative Decisions Review Act 1997 – effect of appointment of manager pursuant to s 126 of the Property and Stock Agents Act 2002 on assessment of public interest – role of manager. APPEAL – interlocutory appeal – leave granted due to importance of issues going to public interest and public administration.

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed

Catchwords:

APPEAL – guardianship – error of law established in part - whether the challenged finding was material to, or likely to have made a difference to, the outcome of the decision under appeal

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law – statutory construction HOME BUILDING — meaning of developer — meaning of residential development — s 3A of the Home Building Act 1989 — owner claimed under statutory warrants in insurance policy

Catchwords:

LEASES AND TENANCIES — Construction and interpretation

Catchwords:

COSTS – whether special circumstances warranting an award of costs

Catchwords:

APPEAL - whether to extend time for lodgement of appeal - lengthy delay in commencing appeal - no satisfactory explanation for delay - lack of merits of appeal - absence of evidence about how golf handicap was made inactive - legal structure concerning golf handicap unclear - legal basis of claims unclear - application for extension of time to commence the appeal refused.

Catchwords:

ADMINISTRATIVE LAW – meaning and effect of s 13A of the Gaming and Liquor Administration Act 2007 (NSW)

Catchwords:

COSTS- where unsuccessful party seeks costs pursuant to 60 of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

APPEALS – Calculation of damages revised – application of established principles

Catchwords:

APPEALS – Tribunal powers – control of proceedings – where appellant is a maximum security inmate at Goulburn Correctional Centre – where appellant seeks additional out-of-cell computer access including during lock-ins to prepare for the appeal – relevant principles - whether the order is necessary to ensure the appellant has unimpeded access to the Tribunal, as part of the basic right to a fair trial in the appeal

Catchwords:

COSTS – home building – unsuccessful application for leave to appeal from first instance directions order – respondent made a submitting appearance reserving its position solely as to costs

Catchwords:

COSTS — Party/Party — Appeals – amount in dispute exceeds $30,000 - general rule that costs follow the event – costs awarded in favour of successful applicant.

Catchwords:

LANDLORD and TENANT – RESIDENTIAL TENANCY – rental bond claim by landlord – alleged denial of procedural fairness – change of landlord communication details – validity and service of termination notice – vacant possession and return of keys – Residential Tenancies Act 2010 (NSW) ss 27, 53(1)(e), 97, 113, 223 – Interpretation Act 1987 (NSW) s 3 and Sch 4 “document”, s 76

Catchwords:

APPEAL – refusal of adjournment – whether denial of procedural fairness – whether utility in allowing appeal

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Reduction in rent by reason of the reduction or withdrawal by the landlord of goods, services or facilities provided with the premises – Liability of tenant for blockage to kitchen sink due to accumulation of fat and oil – No error in conclusion that landlord had not proved that the tenant was responsible.

Catchwords:

Appeal – building and construction dispute – assessment of damages due following breach by builder to comply with its contractual obligations – whether the homeowners had proven loss – whether the builder had displaced the “ruling principle” by evidence that the homeowners had failed to mitigate or had acted in breach of the principles described in Bellgrove v Eldridge.

Catchwords:

APPEALS – STRATA TITLE- costs of appeal - no special circumstances warranting an award of costs

Catchwords:

LEASES AND TENANCIES – social housing residential tenancy agreement (tenancy agreement) – termination for breach of tenancy agreement – failure to keep residential premises in a reasonable state of cleanliness – hoarding – clauses 14 and 43(1) of the tenancy agreement – whether hoarding clause is void APPEALS – adjournment of hearing – denial of procedural fairness

Catchwords:

APPEAL – strata scheme – removal of screen door to lot by owners corporation – fire safety requirements – whether owners corporation entitled to remove door - conduct of hearing before Tribunal – whether denial of procedural fairness – whether reasons inadequate – constructive failure to exercise jurisdiction

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Application for issue of warrant determined in the absence of the appellant – The outcome would not have been different if the appellant had been present – Any breach of procedural fairness was not material

Catchwords:

Costs – claim determined in Commercial and Consumer Division for an amount in excess of $30,000 – application of rule 38 Civil and Administrative Tribunal Rules 2014 (NSW) and rule 38A on internal appeal – whether rules 38 and 38A inconsistent with s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – no inconsistency

Catchwords:

APPEALS — whether Tribunal decision not fair and equitable — whether Tribunal decision against the weight of the evidence

Catchwords:

COSTS — section 60 Civil and Administrative Tribunal Act 2013 (NSW) — special circumstances — whether established

Catchwords:

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — S 48O discretion — Defects — Costs

Catchwords:

APPEALS – Appeal from interlocutory decision to grant of leave to amend claim – leave refused

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed

Catchwords:

APPEAL – No error of law – no new evidence – re-agitation of the same issues GUARDIANSHIP – whether application misconceived – summary dismissal at interlocutory hearing – s 55(1)(b) of the Civil and Administrative Tribunal Act (NSW) 2013

Catchwords:

COSTS – Self-represented party – no valid claim for costs referable to the appeal – application of established principles

Catchwords:

APPEAL — Fresh Evidence — Question of Law— Leave to Appeal — Excluded Government Information

Catchwords:

APPEAL — NCAT — decision to renew and vary initial guardianship order — decision to add access function to initial guardianship order — decision to give Public Guardian an access function GUARDIANSHIP — appointment of guardian —criteria for appointment of guardian — whether Tribunal misstated test for appointment of guardian in s 17(1)(c) of the Guardianship Act 1987 (NSW) — whether Tribunal misapplied s 17(1)(c) of the Guardianship Act — whether error made by Tribunal material PROCEDURAL FAIRNESS — apprehended bias — principles LEAVE TO APPEAL — principles governing under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) WORDS AND PHRASES — meaning of phrase “able to exercise the functions conferred or imposed by the proposed guardianship order” in s 17(1)(c) of the Guardianship Act 1987 (NSW)

Catchwords:

APPEALS — Procedural Orders prior to determination of the substantive proceedings — Interlocutory Decisions — Leave to appeal not granted — Appeals dismissed — Award of Costs

Catchwords:

LAND LAW – whether Holiday Parks (Long-term Casual Occupation) Act applies to occupancy of cabin structure on holiday park in New South Wales – whether cabin structure in whole or in part is a “moveable dwelling” as defined – whether the Tribunal has jurisdiction to determine the dispute. APPEALS – failure to ask the right question – error of law – determination of merits on appeal.

Catchwords:

LEASES AND TENANCIES –- damages to premises by water flow – landlords’ compensation claim – tenants’ rent reduction claim - failure to afford procedural fairness - decision not fair or equitable – decision against the weight of evidence – significant new evidence not reasonably available at time of hearing

Catchwords:

COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellants - no hearing on the merits – costs application dismissed

Catchwords:

Appeal – Dividing Fences Act – no written record of reasons – contested view as to whether oral reasons were given.

Catchwords:

APPEAL – Section 59 of the Civil and Administrative Tribunal Act 2013 – Powers of the Tribunal when proceedings settle – Failure to provide typed transcript or sound recording of hearing – Consequences in connection with ascertaining whether leave to appeal should be granted

Catchwords:

COSTS – application for costs by the respondent –application dismissed

Catchwords:

APPEAL — failure to consider mandatory considerations in s 154E — did not apply correct principles in s 91 RESIDENTIAL TENANCY — termination of social housing agreement — unlawful use of premises under s 91 — requirement to be satisfied the use justifies termination under s 91

Catchwords:

APPEAL – No question of law raised – No ground for leave to appeal – Lack of utility of appeal

Catchwords:

APPEALS – whether leave to appeal should be granted in respect of an interlocutory decision to dismiss an application to adjourn a final hearing should be granted

Catchwords:

APPEAL – error of law – adequacy of reasons – no legal basis disclosed for order making director of building company personally liable for breach of contract - failure to determine scope of work under residential building contract before determining damages – appeal allowed – remitted for rehearing.

Catchwords:

APPEAL – No error on a question of law established – extension of time not warranted LEASES AND TENACIES – Revision of date for possession – avoiding need for further proceedings – – guiding principle applied – exercise of discretion

Catchwords:

LEASES AND TENANCIES – termination of social housing tenancy agreement for breach by the tenant APPEALS – application for extension of time to appeal not opposed APPEALS – question of law raised – adequacy of reasons APPEALS – circumstances warranting remittal for redetermination

Catchwords:

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)

Catchwords:

APPEAL- dividing fence dispute – procedural fairness – sufficiency of fence

Catchwords:

APPEAL – procedural fairness

Catchwords:

APPEAL – Not fair and equitable – Tribunal using resolution process – Section 37 Civil and Administrative Tribunal Act 2013

Catchwords:

COSTS – no question of principle

Catchwords:

COSTS – rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – whether there are special circumstances warranting an award of costs – special circumstances not established.

Catchwords:

LEASES AND TENANCIES — rent arrears — misrepresentation — rent waiver

Catchwords:

COSTS – Follow the event - Separable issues – No issue arising in proceedings at first instance dominant or separable so as to warrant order other than that costs should follow the event COSTS – Appeal and cross-appeal – Both appeals succeed – Overall outcome of appeals is substantial reduction in judgment sum – Impossible to identify separate costs of the appeal and the cross-appeal – Appropriate to discount costs order in favour of party with overall success on the appeal to take account of success of other party on their own appeal

Catchwords:

APPEAL- common property rights by-law- consent required under sections 143 and 149 of the Strata Schemes Management Act 2015.

Catchwords:

PROCEDURAL FAIRNESS — hearing rule — Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) — whether Tribunal gave appellant reasonable period of notice of hearing to determine application for guardianship order — considerations relevant to assessment of whether period of notice of hearing was reasonable PROCEDURAL FAIRNESS — hearing rule — whether by not offering an adjournment and proceeding to determine application for guardianship order in her absence the Tribunal failed to afford the appellant procedural fairness APPEALS — principles governing exercise of discretion to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether findings made by Tribunal were against the weight of evidence

Catchwords:

APPEALS — bias — application for recusal — principles – application dismissed APPEALS — summary dismissal — application for summary dismissal - principles – application dismissed

Catchwords:

APPEALS — Procedural fairness — Evidence not allowed and considered by Tribunal at hearing — Tenants’ failure to file evidence by the dates directed by the Tribunal — Alleged retaliatory eviction — s 115 of the Residential Tenancies Act 2010 (NSW) — Whether Tribunal applied a wrong principle to the onus of proof by requiring expert evidence

Catchwords:

HOME BUILDING - enforceability of a builder’s damages clause where the builder had terminated a contract for lack of finance by owner – no certificate of insurance issued to the owner - whether the builder’s claim is for the payment of damages under a contract for residential building work – application of s 92 and s 94 of the Home Building Act – whether work of a preparatory nature is residential building work. COSTS – Calderbank letter – exercise of discretion for indemnity costs.

Catchwords:

ADMINISTRATIVE LAW –– NSW Civil and Administrative Tribunal –– administrative review under Administrative Decisions Review Act 1997 (NSW) of decision made by NSW Trustee and Guardian –– principles governing decisions made under NSW Trustee and Guardian Act 2009 (NSW) APPEALS –– whether the Tribunal failed to have regard to a “substantial, clearly articulated argument”

Catchwords:

APPEAL – Error as to date not impacting decision – no basis for grating leave to appeal LAND LAW – Strata title – two-year limitation period – date from which that period commences – extension of time not permitted

Catchwords:

LICENSING — packaged liquor licence — appeal by commercial competitors — statutory task under s 48(5) of the Liquor Act — approach to risk assessment — whether balance of probabilities erroneously used — whether Tribunal failed to reach requisite satisfaction — relevance of comparing proposed licence to grant of historical licence APPEALS — Meaning of “question of law” — whether the Tribunal asked itself the wrong question when approaching the question of risk — leave to appeal PRACTICE AND PROCEDURE — stay — utility of a stay

Catchwords:

APPEAL- application by tenant for rent reduction under s44(1)(b) of Residential Tenancies Act 2010-whether principles of mitigation operated to reduce the tenants claim-whether tenant had failed to mitigate by delay in bringing the application-procedural unfairness where mitigation was said to have been raised late-whether member demonstrated bias or whether there was the apprehension of bias

Catchwords:

GOVERNMENT INFORMATION — access to information about intervention decisions of Information Commissioner — excluded information and invalid access application under Government Information (Public Access) Act 2009 (NSW) ADMINISTRATIVE LAW — effect of s 42 of Government Information (Information Commissioner) Act 2009 (NSW) on administrative review jurisdiction of NSW Civil and Administrative Tribunal over decisions of Information and Privacy Commission PRACTICE AND PROCEDURE — correct respondent in administrative review proceedings

Catchwords:

APPEAL – application for extension of time in which to file the appeal – significant delay – no satisfactory explanation for the delay – whether Tribunal has power to make conditional order involving a third party – appeal lacking in merit – application for extension of time refused.

Catchwords:

APPEALS – extension of time – discretion to extend time – no basis established to extend time LEASES AND TENANCIES – bond – repayment to tenant

Catchwords:

APPEALS – question of law – constructive failure to exercise jurisdiction – s 18 Australian Consumer Law 2010 (NSW) - failure to identify correct legal principle – ss 60 and 61 Australian Consumer Law 2010 (NSW) - whether established – leave to appeal – whether grounds established CONSUMER LAW – dispute about whether mechanic duly licensed – dispute about quality of work – consumer guarantees under ss 60 and 61 of the Australian Consumer Law 2010 (NSW) – no error established

Catchwords:

ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal – Procedural fairness – Hearing in absence of appellant – Appellant’s agent notified of hearing – Appellant claimed notice not passed on – Notice to agent was effective notice – No denial of procedural fairness

Catchwords:

BUILDING AND CONSTRUCTION — proceedings transferred under Home Building Act 1989 (NSW) to NSW Civil and Administrative Tribunal from Local Court APPEALS — whether appeal involves questions of law or other questions — whether decisions under appeal against weight of evidence or not just and equitable — impact of failure to lodge appeal materials as directed — use of reply to appeal to raise appeal ground

Catchwords:

COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – respondent the successful party in the appeal – costs follow the event

Catchwords:

APPEAL – Failure to provide a transcript or a typed copy of oral reasons – Leave to appeal on the basis that the decision was against the weight of evidence – Leave to appeal on the basis that significant new evidence has arisen that was not reasonably available at the time the proceedings were being dealt with

Catchwords:

LAND LAW - strata title - common property rights by-law - unreasonable refusal - s 149(1)(b) Strata Schemes Management Act 2015 (NSW)

Catchwords:

APPEALS - Procedure – leave to appeal and extension of time for commencing appeal required - appeal from interlocutory decision after final decision – appeal from refusal of summary dismissal application by respondent to claim on basis that a release of claims in a Deed of Settlement released the claim – inconvenience and litigation prolonged by not appealing the interlocutory decision until after trial and final judgment – proper construction of terms of release - no substantial prospects of success to appeal from interlocutory order – required extension of time and leave to appeal refused. CONSUMER LAW - Enforcement and remedies - construction of deed of settlement – whether s 64 of the Australian Consumer Law applied

Catchwords:

APPEALS – sections 18C, 18D and 18E(4) in the Home Building Act 1989 considered – the role of building experts in Tribunal proceedings

Catchwords:

APPEAL – no requirement for particular form of notice by tenant of need for repairs – misapplication of law relating to compensation under the Residential Tenancies Act – appeal allowed

Catchwords:

APPEAL – residential tenancy agreement – bond claims – decision against weight of evidence – decision not fair or equitable

Catchwords:

APPEAL - costs of appeal - appeal having no tenable basis - special circumstances warranting an award of indemnity costs.

Catchwords:

APPEALS – leave to appeal - procedural fairness – alleged failure to be served – evidence of service

Catchwords:

LAND LAW — Strata title — By-laws - correct standard for assessing compliance with by-laws APPEALS-whether appeal lodged out of time

Catchwords:

GUARDIANSHIP – obligation under s 4(d) of the Guardianship Act 1987 (NSW) to have regard to the views of person with disability – whether Tribunal failed to comply with that obligation PROCEDURAL FAIRNESS – whether Tribunal failed as required by 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) to ensure that the appellant had a reasonable opportunity to be heard PROCEDURAL FAIRNESS – bias – actual basis – whether Tribunal prejudged appellant’s suitability to act as guardian LEAVE TO APPEAL – principles – whether circumstances warrant exercise of discretion to grant leave to appeal

Catchwords:

APPEALS – Error on a question of law – scope of discretion conferred by statute misconceived LAND LAW – Strata title – discretionary factors – impact on common property considered – discretion not confined to that impact CIVIL PROCEDURE – Inclusion of basis for claim in outline submissions insufficient – leave to amend should be sought prior to or at outset of hearing

Catchwords:

APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence APPEALS — Leave to appeal — Principles governing – leave to appeal granted APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder

Catchwords:

APPEALS – Ex parte application for stay – principles - hardship – short stay granted LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Recovery of possession of premises

Catchwords:

APPEAL - leave to appeal – interlocutory decision –application for stay refused – leave to file “fresh” evidence on appeal – administrative review of decision to revoke approval to operate childcare centres.

Catchwords:

LEASES AND TENANCIES — application for extension of time in which to appeal — application for leave to appeal — appeal from decision to set aside orders and for extension of time — leave to appeal from interlocutory decision

Catchwords:

APPEALS – decision of Guardianship Division to renew guardianship order on review – allegation of bias – allegations of procedural unfairness

Catchwords:

APPEAL – Errors on questions of law – no evidence to support finding -– wrong principle of law – failure to give reasons – denial of procedural fairness

Catchwords:

APPEALS — Interlocutory decision - Leave to appeal — Refusal of adjournment – leave to appeal refused. APPEALS — Point of law taken below – whether new point of law should be allowed on appeal new point of law not allowed. BUILDING AND CONSTRUCTION – Occupation Certificate – whether document purporting to be an interim occupation certificate authorised use and occupation of the whole of the building – whether running of limitation period for breach of a statutory warranty under the Home Building Act contingent on such authorisation – whether occupation certificate issued in contravention of s 109H(2) of the Environmental Planning and Assessment Act 1970 (NSW) is an occupation certificate for the purposes of s 4C of the Home Building Act 1989 (NSW) LAND LAW – Strata Titles - Action begun by Chairperson acting for owners corporation without special resolution authorising proceedings — Ratification by the owners corporation — Expiration of limitation period applicable to cause of action — Whether owners corporation entitled to adopt action after expiry of limitation period.

Catchwords:

APPEALS – No recording or transcript of the hearing or the oral reasons available – failure to comply with direction despite extension of time – no error on a question of law or basis for granting leave to appeal established

Catchwords:

GOVERNMENT INFORMATION — access to government information — considering conditions on access under s 73(2) of the GIPA Act — creation of a new record — “000” call and “personal information” ADMINISTRATIVE LAW — whether the Tribunal erred in failing to consider ss 73(2) and 74 of the GIPA Act — Whether failing to address a party’s adjournment application and proceeding in their absence is a material breach of procedural fairness — standing in the shoes of the administrator under s 63(2) of the ADR Act — remittal to Tribunal STATUTORY INTERPRETATION — meaning of s 75 of GIPA Act — conflict of provisions — generalia specialibus non derogant — whether s 75(2) or s 72 is dominant

Catchwords:

COSTS – Appellant ordered to pay respondent’s costs – whether error on question of law – failure to take into account appellant’s submissions on costs.

Catchwords:

APPEAL – consumer law – words and phrases – meaning of the expression “In the event I am wrong” – damages - no error

Catchwords:

CONSUMER LAW – consumer guarantees – supply of services – action against supplier - enforcement and remedies — action for damages — assessment of damages

Catchwords:

APPEALS – Extension of time granted – appellant a successful applicant – complaint about conduct in response to orders – no error on a question of law – no substantial miscarriage of justice

Catchwords:

APPEALS – whether utility in circumstances where orders the subject of the appeal have been carried out

Catchwords:

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty under s 18B — time limit of statutory warranty under s 48K(7) — “major defect” for purposes of s 18E(1)(b) APPEALS — internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 as of right “on any question of law” — relevant principles regarding leave to appeal — whether a late redraft of the grounds of appeal requires an extension of time — whether to grant leave to extend time — the importance of articulating a question of law with precision

Catchwords:

COSTS – application for costs by respondent – principles – application dismissed

Catchwords:

APPEAL - administrative review - statutory construction – s 25 of the Home Building Act 1989 (NSW) - requirement to find the applicant to be a fit and proper person - adverse inferences where applicant did not give evidence - whether inferences sought were conjectures - whether finding that applicant was fit and proper was legally reasonable.

Catchwords:

LEASES AND TENANCIES — retail lease — claim for damages for losses because of reduction of power supply during lease — expert evidence — application of NCAT Procedural Direction 3 to expert evidence in proceedings under Retail Leases Act 1994 (NSW) APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence — remittal of proceedings

Catchwords:

LEASES AND TENANCIES-social housing-termination for breach-cleanliness of property-Tribunal hearing conducted ex parte-documentary evidence of landlord not served-whether denial of procedural fairness-warrant for possession executed before appeal filed-whether appeal rendered nugatory

Catchwords:

LAND LAW – Community Land Development Act 1989 (NSW) – Community Land Development Act 1989 (NSW) – creation of by-laws for restricted use – interpretation of by-laws – effectiveness of grant of by-law made by strata scheme on subdivision of strata lot – whether particular common property the subject of the grant. PRACTICE AND PROCEDURE – referral of adjudication proceedings commenced under the Community Land Management Act 1989 (NSW) to the Tribunal – permissibility of including in those referred proceedings applications for relief which only the Tribunal can hear COSTS – whether Tribunal, on the referral by an adjudicator of proceedings under the Community Land Management Act 1989 (NSW) may award costs – whether the Tribunal in determining application which includes relief within the original general jurisdiction of the Tribunal may award costs in respect of those matters only

Catchwords:

LANDLORD AND TENANT – COVID 19 pandemic – restrictions on terminating lease – meaning of “impacted tenant” – whether relevant projection was made to qualify for JobKeeper LANDLORD AND TENANT – Retail Leases Act 1994 – unconscionable conduct – person acting on mistaken view of law – what constitutes unconscionable conduct DAMAGES – need for Tribunal to assess damages where no admission or concession made

Catchwords:

CONTRACT LAW – mutual cancellation of contract – recovery of reasonable charges to date of cancellation – meaning of the expression “reasonable charges” – requirements for evidence to establish reasonable charges – relevance of other provisions in contract – sufficiency of evidence

Catchwords:

DOCTRINE OF PRECEDENT — application to NCAT — whether “last resort principle” forms part of the ratio decidendi in Holt v Protective Commissioner (1993) 31 NSWLR 227 and Mv M [2013] NSWSC 1495 — whether “last resort principle” constituted “seriously considered” dicta in Holt v Protective Commissioner and M v M STATUTORY INTERPRETATION — whether s 25M of the Guardianship Act 1987 (NSW) creates a presumption that where available a “suitable person” must be appointed to manage the estate of a protected person over the NSW Trustee and Guardian APPEALS –– appeal from summary dismissal of decision made under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– “lacking in substance” –– whether Tribunal applied the correct test ADMINISTRATIVE LAW — legal unreasonableness — whether decision to commit the management of the protected person’s estate to the NSW Trustee and Guardian was “manifestly unreasonable”, lacked an evident and intelligible justification REASONS FOR DECISION — whether reasons for decision were adequate

Catchwords:

APPEALS – No error on a question of law – no basis for granting leave to appeal – application of established principles EVIDENCE – Expert evidence – requirements considered – weight to be given to such evidence

Catchwords:

Appeal – Errors of law – Rectification methodology – Necessary and reasonable - Set off

Catchwords:

APPEALS – costs of interlocutory application found to be an abuse of process – case management orders

Catchwords:

APPEALS – Leave to appeal -

Catchwords:

APPEALS – Reference to statutory provision at initial hearing – decision based on different statutory provision – no opportunity to meet that case – denial of procedural fairness EVIDENCE – Expert evidence – requirements considered – weight to be given to such evidence EVIDENCE – Burden of proof – observations on difference between legal burden and evidential burden