Appeal against costs order – Where Tribunal drew inferences in reliance on undisturbed findings in substantive proceedings – Whether appellants demonstrated error on question of law
Judgment of
I R Coleman SC ADCJ, Principal Member,
Dr D Goldman, Senior Member
CONSUMER LAW - Consumer guarantees - Supply of services - Guarantee as to due care and skill - supplier’s claim to be determined under s 79O Fair Trading Act 1987 (NSW) - Remedies - Compensation orders - major failure of consumer guarantee
Judgment of
S De Jersey, Principal Member
K Merrick, Senior Member
APPEALS – Whether there was a failure to afford procedural fairness APPEALS – Time period to lodge appeal – whether extension of time should be granted. APPEALS — Leave to Appeal - LEASES AND TENANCIES — Residential
Judgment of
H Woods, Senior Member
J Redfern PSM, Senior Member
BUILDING AND CONSTRUCTION — Contract — Insurance — Home warranty – Home Building Act 1989 (NSW) — application to and liability of developers – meaning of owner and developer – whether tenants in common developing eight dwellings are developers - whether intention relevant to question of legal ownership – time at which an assessment of whether owners are developers is to be made
Judgment of
Balla ADCJ, Principal Member
P H Molony, Senior Member
LAND LAW – Strata title – Common property – Whether owners corporation liable to compensate lot owner for damage to structures erected on common property over which the lot owner has exclusive use where the damage was occasioned in the course of the owners corporation carrying out repairs or maintenance of common property – Whether trespass by the owners corporation affects its potential liability LAND LAW - Strata title – By-laws - interpretation of by-laws - Whether indemnity by lot owner in respect of liability resulting from the use of exclusive use areas extends to damage caused by the owners corporation to structures on the exclusive use areas
Judgment of
D Robertson, Principal Member
N Kennedy, Senior Member
REAL PROPERTY – RETAIL LEASES – urgent interlocutory application - re-entry and demolition of premises after alleged non-compliance with notice of breach and associated contests – whether ought to be treated as having altered to final hearing by reason of parties’ submissions on matters characterised as final relief when no formalisation of that course – Retail Leases Act 1994 (NSW) s 72
Judgment of
G K Burton SC, Senior Member
K Merrick, Senior Member
APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal granted on one ground and otherwise refused APPEALS - Procedural fairness - Hearing rule – Principles - Failure to give party an opportunity to provide documents in reply CONSUMER LAW — Consumer guarantees — Supply of goods — Guarantee as to acceptable quality
Judgment of
G Blake AM SC, Principal Member
H Woods, Senior Member
COSTS- whether costs of the appeal should be paid by the Appellant- consideration of special circumstances- Appellant unsuccessful except as to the costs order made at first instance-whether an allowance should be made in respect of a costs order to reflect the Appellants success on the issue of costs at first instance.
Judgment of
S Westgarth, Deputy President
R Titterton OAM, Senior Member
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — tenant claims for compensation - s.26 (misleading inducement) - s.52 (failure to provide premises fit for habitation)
Judgment of
G Burton SC, Senior Member
K Merrick, Senior Member
APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – oral agreement – whether residential tenancy agreement – right of occupation – relevance of fresh or further evidence
CIVIL PROCEDURE – Consent orders – Authority to give consent – Whether daughter of appellant who appeared at hearing and purported to consent to orders on the appellant’s behalf could so consent – Whether document giving authority to communicate with the respondent social housing provider constituted authority to represent the appellant in the Tribunal and consent to orders resolving proceedings – The absence of authority vitiated the consent purportedly given by the daughter – Orders set aside
Judgment of
D A C Robertson, Principal Member
N Kennedy, Senior Member
APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Boarding Houses Act 2012 (NSW) – whether agreement was to board or lodge – no jurisdiction under Residential Tenancies Act 2010 (NSW)
APPEALS – Time period to lodge appeal – r 25 Civil and Administrative Tribunal Rules 2014 (NSW) – extension of time required – s 41 Civil and Administrative Tribunal Act 2013 (NSW) – whether extension of time should be granted LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – compensation to landlord – rent and utilities arrears – credit of bond amount – constructive failure to exercise jurisdiction
APPEAL – appeal against decision of the Consumer and Commercial Division that the respondent did not breach occupancy agreement by issuing a vacate notice-no error of question of law – application of cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act- no error on question of law- no other basis for leave to appeal.
Judgment of
S Westgarth, Deputy President
R Bailey, Senior Member
LEAVE TO APPEAL – whether right to appeal from an internally appealable decision abates upon the death of the person the subject of the decision GUARDIANSHIP – whether Tribunal failed to “have regard to” the views of the person – obligation to “have regard to” mandatory considerations, s 14 of Guardianship Act 1987 (NSW) GUARDIANSHIP – appointment of a guardian – whether Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act PROCEDURAL FAIRNESS – whether failure to consider material lodged by party constitutes a denial procedural unfairness – whether failure was material to Tribunal’s ultimate decision.
Judgment of
A Britton, Deputy President
C A Mulvey, Senior Member (Legal)
M E Bolt, General Member
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
Judgment of
N Kennedy, Senior Member
D Goldstein, Senior Member
APPEAL - claim against agent for failure to commence proceedings against former tenant for compensation - agent had terminated management agency agreement - failure by landlord to take action against tenant in light of termination of agency agreement - no error of law or other appeal ground – appellant bound by prior Tribunal decision which had not been appealed
Judgment of
S Westgarth, Deputy President
K Merrick, Senior Member
Appeal against order for costs - whether appellant demonstrates error on question of law- whether Appeal Panel should re-exercise discretion of Tribunal - whether partial costs should be awarded
Judgment of
I R Coleman SC ADCJ, Principal Member;
H Woods, Senior Member
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – tenant of a social housing complex – claim for loss of quiet enjoyment – actions of neighbouring tenant in common areas APPEALS – whether error established – s 50(3) of the Residential Tenancies Act 2010 (NSW)
Judgment of
Dr K George, Senior Member
J Sullivan, Senior Member
APPEALS — Guardianship and financial management — whether appellants should be granted leave to rely on new evidence — whether Tribunal erred on question of law in finding appellants lacked standing to apply for guardianship and financial management of person with whom their interests were engaged in strata plan proceedings — whether appellants should be granted leave to appeal
Judgment of
I R Coleman SC ADCJ, Principal Member
A Boxall, Senior Member
Dr B McPhee, Senior Member
APPEAL – question of law – no question of law identified by legal representatives – LEAVE to appeal – considerations – leave to appeal granted – failure by the Tribunal to engage with clearly articulated argument
Judgment of
G Blake AM SC, Principal Member
P H Molony, Senior Member
APPEAL – Australian Consumer Law – consumer guarantees – delay in installing towbar – not a major failure – no error on question of law or miscarriage of justice – findings of fact open on the evidence – leave to appeal refused
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
Appeal – appeal from decision giving leave for Respondent to have legal representation and adjourning proceedings – leave from an interlocutory decision – whether criteria for grant of leave is established – utility of appeal insofar as the Tribunal at first instance adjourned the proceedings – costs of the appeal – whether special circumstances exist warranting an award for costs
Judgment of
S Westgarth, Deputy President
K Merrick, Senior Member
APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Where the owners repudiated the building contract – Whether the builder has established an entitled to damages for loss of profits
Judgment of
G Blake AM SC, Principal Member
D Robertson, Principal Member
APPEALS – PRACTICE AND PROCEDURE – whether appellant should be granted leave to appeal from Tribunal’s decision to dismiss appellant’s application to set aside summons – whether appellant has identified an issue of principle – whether relevance of categories of documents is to be determined in merits review proceedings by reference only to facts currently in dispute or whether relevance is to be assessed by reference to broader issues between the parties - whether appellant would suffer a substantial injustice if leave to appeal were refused
LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 149 — Whether owners corporation had unreasonably refused to make a common property rights by-law LAND LAW — Strata title — Common property — Strata Schemes Management Act 2015 s 126 —Approval of alterations to common property — Submission of a by-law to a general meeting constitutes a sufficient request for approval
Judgment of
D Robertson, Principal Member
D Goldstein, Senior Member
Appeals – Whether there was authority to commence legal proceedings – strata approval of works to an individual lot – different legal approval regimes – denial of procedural fairness – no error of law or other appellable error established.
APPEALS — Appeal on question of law — Principles governing APPEALS — Leave to appeal — Principles governing — Leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Claims by owner against builder — Whether owner is entitled to remedy against each builder who breached statutory warranties — Whether terms implied in building contract — Whether owner is entitled to damages for increased costs due to delay — Whether owner is entitled to damages for loss of rent due to delay
Judgment of
G Blake AM SC, Principal Member
Dr D Goldman, Senior Member
APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS — Procedural fairness — Failure to give reasons - Reasons satisfy applicable standard APPEALS — Procedural fairness — Hearing rule – No failure LEASES AND TENANCIES — Retail leases — NSW Civil and Administrative Tribunal — Jurisdiction and power - Permitted use of the premises is “massage and beauty” - Whether the use of the premises is a prescribed business under the Retail Leases Act 1994 (NSW) – What is the predominant use of the premises
Judgment of
G Sarginson, Deputy President
G Blake AM SC, Principal Member
APPEALS – Appeal from a termination and possession order for non-payment of rent - apprehended bias – failure to recuse – denial of procedural fairness – failure to consider evidence and mandatory provisions – failure to give adequate reasons – no error on a question of law established - costs
Judgment of
K Robinson Principal Member
S Hennings Senior Member
APPEAL – residential tenancy – whether time to file notice of appeal should be extended – whether appellant demonstrated error on a question of law or on any other ground
Judgment of
Dr K George, Senior Member
J Sullivan, Senior Member
APPEALS – question of law – denial of procedural fairness – failure of the Tribunal to inform an unrepresented litigant of their right to cross-examine the other parties’ expert
Judgment of
R C Titterton OAM, Senior Member
A R Boxall, Senior Member
APPEALS – Leave to appeal – notation to orders not reasons nor reasoning – no error nor substantial injustice established – leave refused – appeal dismissed
Judgment of
K Robinson, Principal Member
A Lo Surdo SC, Senior Member
APPEALS — Constructive failure to exercise jurisdiction — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to address a material issue and material evidence BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) – repudiation by the builder – measure and assessment of damages - calculation of damages
Judgment of
G Blake AM SC, Principal Member
Dr D Goldman, Senior Member
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
APPEALS – questions of law – leave to appeal – failure to engage with clearly articulated case – constructive failure to exercise jurisdiction BUILDING and CONSTRUCTION – HOME BUILDING – contract - unauthorised variations – price increases
Judgment of
S de Jersey, Principal Member
N Kennedy, Senior Member
COSTS – respondent successful in the appeal - Calderbank offer – whether indemnity costs order should be made – Civil and Administrative Tribunal Rules 2014 (NSW) rr 38, 38A
Judgment of
G Sarginson, Deputy President
G K Burton SC, Senior Member
LAND LAW – RESIDENTIAL TENANCY – claim by landlord for rent arrears and occupation fee after date of termination – date on which landlord’s mortgagee took possession or otherwise became entitled to rent not established - Residential Tenancies Act 2010 (NSW) s 122
Judgment of
G K Burton SC, Senior Member
A R Boxall, Senior Member
LAND LAW – COMMUNITY SCHEMES – application for appointment of compulsory managing agent – proper parties - standing to make application – dismissal for lack of due despatch (want of prosecution) – inadequate explanation for delay of years in appealing – poor prospects of appeal – extension of time to appeal refused - Civil and Administrative Tribunal Act 2010 (NSW) s 41, Civil and Administrative Tribunal Rules 2014 (NSW) r 13
Judgment of
S Westgarth, Deputy President
G K Burton SC, Senior Member
POWERS OF ATTORNEY — reviewable powers of attorney — enduring powers of attorney — whether the Tribunal misapplied s 36(4) of the Powers of Attorney Act 2003 (NSW) APPEALS — findings of fact — whether finding that there was no evidence of “any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” APPEALS — whether to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
J T Kearney, Senior Member
Dr M Spencer, General Member
CONSUMER LAW – Consumer guarantees –Supply of goods – Guarantee as to acceptable quality – Guarantee as to fitness for disclosed purpose CIVIL PROCEDURE – NSW Civil and Administrative Tribunal – Appeal on a question of law – Whether adequacy of reasons raises a question of law – Whether no evidence for a finding critical to the decision
Judgment of
D Robertson, Principal Member
M Tyson, Senior Member
APPEALS – internal appeals – jurisdiction- application to appeal or vary costs orders of the Tribunal at first instance – no Appeal Panel jurisdiction to make the orders sought
APPEAL – whether there was a failure to afford procedural fairness – whether the decision was against the weight of evidence. EVIDENCE — whether finding was against the weight of evidence — approach to drawing permissible inferences.
COSTS – applicable costs rule – s 60 of the Civil and Administrative Act 2013 (NSW) – whether special circumstances are established – whether costs should be awarded on the indemnity basis
Judgment of
D Charles, Senior Member
R C Titterton OAM, Senior Member
COSTS - unsuccessful appeal against costs order at first instance - whether respondent demonstrated special circumstances - whether costs should be awarded - whether respondent establishes entitlement to indemnity costs – whether genuine offer of compromise
Judgment of
I R Coleman SC ADCJ, Principal Member
D Charles, Senior Member
COSTS – s 60 Civil and Administrative Tribunal Act 2015 (NSW) – reinstatement proceedings – s 55(2) Civil and Administrative Tribunal Act 2013 (NSW) – whether special circumstances established sufficient to warrant a costs order
appeals –– administrative review –– security industry licence –– revocation of licence –– whether appellant is a fit and proper person to hold a licence –– whether contrary to public interest for appellant to hold a licence –– question of law –– leave to appeal
Judgment of
Seiden SC DCJ, Deputy President
G Blake AM SC, Principal Member
LEASES AND TEANANCIES – Residential Tenancies Act 2010 (NSW) – retaliatory notice – s 115 Residential Tenancies Act 2010 (NSW) – whether correct legal principle applied – quiet enjoyment – s 50 Residential Tenancies Act 2010 (NSW) – whether correct legal principles applied – no error on a question of law established – leave to appeal not established
APPEAL - Residential Tenancies Act 2010 (NSW) – termination for non-payment of rent - transcript or sound recording not provided - leave to appeal refused
Judgment of
Dr K M George, Senior Member
M Tibbey, Senior Member
COSTS - Party/Party — Appeals – whether amount in dispute on appeal exceeds $30,000 – special circumstances required – no special circumstances established.
Judgment of
P Durack SC, Senior Member
N Kennedy, Senior Member
APPEALS – meaning of an appeal on a “question of law” – whether a question of law may include a question of mixed fact and law – freedom of information – whether the Tribunal misapplied the onus in the Government Information (Public Access) Act 2009 – consideration of operation of onus in relation to claimed public interest consideration in favour of disclosure – whether the Tribunal wrongly concluded that it would deny the respondent procedural fairness by conducting its own inquiries into subject matter of claimed public interest consideration in favour of disclosure – whether the Tribunal erred by failing to draw an inference in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298
Judgment of
Dr J Lucy, Principal Member
C Mulvey, Senior Member
LAND LAW – strata title – common property – duty to repair – breach of duty – damages for breach of duty – causation – determination of cause of loss – action of lot owner altering or repairing common property – ss 106(5) and 232 Strata Schemes Management Act 2015 (NSW)
Judgment of
G Sarginson, Deputy President
D Charles, Senior Member
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent APPEALS — Procedural fairness — Bias or apprehension of bias APPEALS — Procedure — Proof and evidence — Record of court or tribunal below
APPEAL − residential tenancy – termination of long-standing social housing tenancy because of failure to comply with cleanliness obligations – persistent breaches alleged – new evidence about steps taken after the hearing – whether the appellant may suffer a substantial miscarriage of justice – whether significant new evidence
Judgment of
J Redfern PSM, Senior Member
P Durack SC, Senior Member
LEASES AND TENANCIES – rights and obligations of landlords and tenants – excessive rent due to withdrawal or reduction in goods, services and facilities provided with residential premises – determination of excessive rent – reduction of rent on frustration of residential tenancy agreement APPEAL – question of law – whether reasons adequate
Appeal – appeal against the dismissal of a set aside application made under cl 9 of the Civil and Administrative Tribunal Regulation – no evidence that the Appellant’s absence resulted in his case not being adequately put – no error of law
Judgment of
S Westgarth, Deputy President
R Bailey, Senior Member
APPEAL – motor vehicle repair – Australian Consumer Law claim – claim determined in the absence of a party – no opportunity to defend the claim – failure to give reasons for the exercise of discretion to proceed – denial of procedural fairness
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellants – no hearing on the merits – costs application dismissed
APPEALS – reinstatement application – principles – application dismissed CIVIL PROCEDURE – Suppression and non-publication – application by appellant to have publication of decision restricted or her name and any identifying details anonymised –application dismissed
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) s 165 — Claims against the rental bond — Breach by landlord of s 165 of the Residential Tenancies Act through failure to provide documents supporting the landlord’s claim on the bond — Where bond paid to landlord, the landlord’s failure to comply with s 165 does not prevent the landlord relying upon claims in respect of unpaid rent, utilities charges or damage to the premises as a defence to a claim by the tenant for repayment of the bond
Judgment of
DAC Robertson, Principal Member
K Merrick, Senior Member
LAND LAW – RESIDENTIAL TENANCY – claims for alleged breaches of landlord maintenance obligations and loss of quiet enjoyment – limitation period for money claims – extension of time - construction of tenancy agreement, advertisement and incoming condition report - Residential Tenancies Act 2010 (NSW) s 190, Residential Tenancies Regulation 2019 (NSW) reg 39(9), Civil and Administrative Tribunal Act 2010 (NSW) s 41
Judgment of
G K Burton SC, Senior Member
Dr D Goldman, Senior Member
APPEALS – access to information - questions of law - leave – administrative review - hearing dispensed with - procedural fairness – bias – discharge of onus – no requirement to call witness nor provide specified documents – no error as to jurisdiction – no exercise of judicial power - appeal dismissed
Judgment of
K Robinson, Principal Member
J Sullivan, Senior Member
CONSUMER LAW-remedies for non-compliance with guarantee of acceptable quality – whether notice of rejection given to supplier – whether notice of rejection given within rejection period – whether “damage” to caravan precluded rejection- whether Tribunal could make an order for repairs. APPEAL –appellant relied on alleged errors of law only – no material errors of law established.
Judgment of
P Durack SC, Senior Member
S Hennings, Senior member
APPEAL − residential tenancy – ex parte hearing in the absence of a party – denial of procedural fairness claimed because the Tribunal did not consider material filed – no error on question of law
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
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
Judgment of
R C Titterton OAM, Senior Member
P H Molony, Senior Member
APPEAL — Review under Taxation Administration Act 1996 (NSW) — Land tax — Primary production exemption — Dominant purpose — Where multiple purposes of land APPEALS — Materiality of error APPEALS — Procedure — Parties on appeal — Unrepresented litigants STATUTORY INTERPRETATION — Principle of legality — Onus of proof — Power to issue retrospective assessment
Judgment of
Seiden SC DCJ, Deputy President
J Redfern PSM, Senior Member
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
BUILDING AND CONSTRUCTION – where contract for residential building work not in writing pursuant to Home Building Act 1989 (NSW) – where Tribunal upheld builders claim in quantum meruit – where Tribunal upheld homeowners cross-application for damages for defective building work – whether decision of Tribunal on cross-application based on material errors of fact – whether Tribunal failed to adequately expose the process of reasoning leading to its decision – whether Appeal Panel should re-exercise original jurisdiction or remit proceedings for re-hearing by Tribunal – whether ambit of re-hearing should be limited to determination of builders liability for alleged defective work
Judgment of
I R Coleman SC ADCJ, Principal Member
D Charles, Senior Member
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant – no hearing on the merits – costs application dismissed
COSTS – Civil and Administrative Tribunal Act 2013, s 60 – whether there are special circumstances warranting an award of costs –– no special circumstances – no costs awarded
NCAT — Internal Appeals — constructive failure to exercise jurisdiction — whether in appointing NSW Public Guardian Tribunal failed to consider whether “an order can be made appointing some other person as the guardian of the person”, Guardianship Act 1987(NSW), s 15(3) STATUTORY INTERPRETATION — Guardianship Act 1987(NSW) — operation of ss 15(3) and 17(1)
Judgment of
A Britton, Deputy President
A R Boxall, Senior Member
C M Kennedy, Senior Member
APPEAL – Tax and duties – Payroll tax – Employment agency contract – Application of Chief Commissioner of State Revenue v Integrated Trolley Management Pty Ltd [2023] NSWCA 302 – Whether the Tribunal erred on a question of law in its approach to the statutory question under s 37 of the Payroll Tax Act 2007 (NSW)
Judgment of
Seiden SC DCJ, Deputy President
J Redfern PSM, Senior Member
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed
RES JUDICATA – consumer claim for defects in motor vehicle – same claim in Tribunal dismissed in earlier proceedings due to lack of proof of defect at time of supply – subsequent proceedings brought between same parties in light of expert report obtained by applicant – dismissed on basis claim had already been determined. APPEALS- appeal dismissed – decision in primary proceedings was correct.
Judgment of
P Durack SC, Senior Member
S Hennings, Senior Member
Builders licensing - statutory interpretation - whether Secretary “must” dismiss application where prior experience of applicant unable to be verified due to death of supervisor
Judgment of
I R Coleman SC ADCJ, Principal Member
J Redfern PSM, Senior Member
APPEALS — NCAT — appeal available from “appealable Division decision” to NCAT Appeal Panel (“internal appeal”) or NSW Supreme Court — whether request by appellant to withdraw internal appeal for the purpose of enabling an appeal to the Supreme Court should be granted. APPEALS — NCAT — principles governing granting leave to appeal an interlocutory decision –– decision to decline to order that subject person be separately represented in proceedings. NCAT — representation –– decision to decline to order under Civil and Administrative Tribunal Act, s 45(4)(c) that subject person be separately represented in proceedings. NCAT — non-disclosure order, s 64(1) Civil and Administrative Tribunal Act 2013 (NSW)
Judgment of
A Britton, Deputy President
A R Boxall, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
COSTS – special circumstances – exercise of discretion to award costs WORDS AND PHRASES – “proceedings” in Civil and Administrative Tribunal Act 2013 (NSW), s 60
PROCEDURAL FAIRNESS — hearing rule — whether as required by Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) Tribunal gave appellant a reasonable opportunity to be heard PROCEDURAL FAIRNESS — whether obligation to give the person the subject of the proceedings, required Tribunal a reasonable opportunity to be heard, required Tribunal to cross examine that person PROCEDURAL FAIRNESS — principle stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 — whether Tribunal was obliged to give appellant an opportunity to respond to adverse comments made about her by another party ADMINISTRATIVE LAW — adequacy of reasons — nature of obligation to give reasons for decision — whether Tribunal gave adequate reasons PROCEDURAL FAIRNESS — bias — actual bias APPEALS — NCAT —interlocutory decisions — principles governing leave to appeal APPEALS — NCAT — power to deal with “internal appeal” by way of a new hearing, s 80(3) of the Civil and Administrative Tribunal Act 2013
Judgment of
A Britton, Deputy President
A R Boxall, Senior Member (Legal)
C M Kennedy, Senior Member (Professional)
APPEAL – Australian Consumer Law – alleged breach of consumer guarantees – alleged misleading misrepresentations – no error on question of law – findings of fact open on the evidence – whether significant new evidence – whether evidence wrongly rejected –no substantial miscarriage of justice – leave to appeal refused – appeal dismissed
Judgment of
J Redfern PSM, Senior Member
D Goldstein, Senior Member
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Offer of rent rebate if tenant vacated early to enable sale of property — Tenant did not give notice to vacate but sought to take advantage of offer three months later — Landlord not bound to allow rent rebate — Tenant failed to fulfil requirements of offer — Even if offer had not lapsed by effluxion of time offer was withdrawn by landlord before tenant took the steps required to accept it
HOME BUILDING APPEAL- whether appellant establishes entitlement to adduce new evidence- whether appellant establishes entitlement to grant of leave to appeal
Judgment of
I R Coleman SC ADCJ, Principal Member
N Kennedy, Senior Member
APPEAL – agricultural tenancy – multiple proceedings and claims – whether failure to afford procedural fairness – whether findings of fact were against the weight of evidence – no sound recording or transcript provided – no error established on the evidence before the Appeal Panel
Judgment of
J Sullivan, Senior Member
G Burton SC, Senior Member
LEASES AND TENANCIES- Residential Tenancies Act 2010 (NSW) – rent reduction – agreement of parties – consent orders – circumstances in which consent orders can be set aside – extension of time
Judgment of
G Sarginson, Deputy President
Dr K M George, Senior Member
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellants - no hearing on the merits – costs application dismissed
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 COSTS – ordinary basis – follow the event
Judgment of
S de Jersey, Principal Member
G K Burton SC, Senior Member
APPEAL – residential tenancy – extension of time to file notice of appeal - oral reasons given for decision under appeal - failure to provide transcript or recording to Appeal Panel
APPEALS – Jurisdiction - Whether an ancillary decision as to jurisdiction and an interlocutory decision refusing an extension of time to lodge an external appeal in proceedings in the Occupational Division of the Tribunal is not internally appealable by reason of the decision being in proceedings made for the purposes of the Health Practitioner Regulation National Law (NSW) within the meaning of cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) OCCUPATIONS – Dentist - Whether an ancillary decision as to jurisdiction and an interlocutory decision refusing an extension of time to lodge an external appeal in proceedings in the Occupational Division of the Tribunal is a decision made for the purposes of the Health Practitioner Regulation National Law (NSW) within the meaning of cl 29(1)(d) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether each decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW)
PRACTICE AND PROCEDURE – application to correct reasons for decision – s 63 of the New South Wales Civil and Administrative Tribunal Act 2013 (NSW) – slip rule
Judgment of
Seiden SC DCJ, Deputy President
H J Dixon SC, Senior Member
STRATA TITLES- whether amendment to exclusive rights by-law required consent of owners benefited by existing by-law- whether owners corporation erroneously exercised discretion to amend exclusive rights by-law
Judgment of
I R Coleman SC ADCJ, Principal Member
N Kennedy, Senior Member
LAND LAW – RESIDENTIAL TENANCY – rent reduction and compensation claims for alleged loss of facilities and services and breaches of landlord obligations – reasonable mitigation by tenants – measure of loss – Residential Tenancies Act 2010 (NSW) ss 44, 47, 52, 63, 70 APPEAL – re-determination of proceedings
Judgment of
G K Burton SC, Senior Member
J Sullivan, Senior Member
APPEAL – Australian Consumer Law – damage to motor vehicle being transported − no error on question of law or miscarriage of justice – findings of fact open on the evidence – question of whether significant new evidence had arisen – leave to appeal refused
Judgment of
J Redfern PSM, Senior Member
M Tyson, Senior Member
Appeal against order for costs- whether Tribunal erred in exercising discretion to award costs- whether Tribunal failed to have regard to relevant considerations
Judgment of
I R Coleman SC ADCJ, Principal Member
D Charles, Senior Member
APPEAL − residential tenancy – performance order – whether additional non-smoking term valid – failure to consider claims – procedural fairness – no error on question of law
Judgment of
J Redfern PSM, Senior Member
N Kennedy, Senior Member
APPEALS – appeal from a consent order to carry out work/repairs at the tenant’s property and other associated orders – no error of law or other appellable error established.
APPEALS – Jurisdiction - Whether an ancillary decision as to jurisdiction is not internally appealable by reason of the decision being in proceedings made for the purposes of the Legal Profession Uniform Law (NSW) within the meaning of cl 29(1)(e) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) OCCUPATIONS – Legal practitioner - Whether an ancillary decision as to jurisdiction in proceedings in the Occupational Division of the Tribunal is a decision made for the purposes of the Legal Profession Uniform Law (NSW) within the meaning of cl 29(1)(e) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) – Whether such a decision is ‘not internally appealable’ pursuant to s 32 of the Civil and Administrative Tribunal Act 2013 (NSW)
APPEAL – request for access to information under Government Information (Public Access) Act 2009 (NSW) – interpreting grounds of appeal – questions of law – reduced scope of request after access application made – leave - appeal dismissed
Judgment of
K Robinson, Principal Member
J Sullivan, Senior Member
Appeal – whether the agreement between the parties is a residential tenancy agreement regulated by the Residential Tenancies Act or an occupancy agreement regulated by the Boarding House Act – consideration of ss 8(1)(c) and 13 of the Residential Tenancies Act – statutory construction-whether time to lodge the appeal should be extended given that the Appellant has suffered an injustice with consequences going beyond the relationship between the parties.
Judgment of
S Westgarth, Deputy President
R Titterton OAM, Senior Member
LAND LAW – Residential Tenancies Act 2010 (NSW) – denial of procedural fairness – apprehended bias – no error on a question of law established – no basis established for granting leave to appeal
LAND LAW – Strata title -interaction of common property rights by-law with existing breaches of owners corporation’s strict duty to maintain and repair common property – construction of by-law – meaning of “affect” in context of common property with pre-existing defects – meaning of “plans” - Strata Schemes Management Act 2015 (NSW) ss 106, 149
Judgment of
G Sarginson, Deputy President
G K Burton SC, Senior Member
Appeals – where appellant appealed from decision of Tribunal affirming the respondent’s decision to revoke his firearms licence – where firearms legislation amended to remove right to apply to the Tribunal for review of a revocation decision – whether Appeal Panel has jurisdiction to hear the appeal – whether appeal should be dismissed on the basis that it is moot
Judgment of
Dr J Lucy, Principal Member
J Redfern PSM, Senior Member
HEALTH — Health records — Privacy — Disclosure for the secondary purpose of research — HPP11(1)(f) – meaning of “in the public interest” — circumstances in which course of conduct can constitute both a use under HPP 10 and a disclosure under HPP 11 HUMAN RIGHTS — Legislation — Health Records and Information Privacy Act 2002 (NSW) – HPP 10, 11 and s 64 — whether Statutory Guidelines on Research issued by the Privacy Commissioner require strict compliance or conformity — Privacy and Personal Information Protection Act 1998 (NSW) – s 55(2)
Judgment of
Seiden SC DCJ, Deputy President
P H Molony, Senior Member
LAND LAW – Residential Tenancies Act 2010 (NSW) – breach of quiet enjoyment –identification of the agent of the landlord – whether landlord liable for actions of third parties – condition of the premises – whether premises kept in a reasonable state of repair APPEALS – practice and procedure – whether extension of time should be granted – Civil and Administrative Tribunal Act 2013 (NSW) s 41
APPEALS – Costs – rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) – respondents the successful party in the appeal – costs follow the event
Judgment of
S de Jersey, Principal Member
J Sullivan, Senior Member
APPEALS – firearms – whether Appeal Panel has jurisdiction to hear appeal following amendments to Firearms Act 1996 – whether Appeal Panel should grant a stay of Tribunal’s decision – whether a stay is appropriate to secure the effectiveness of the determination of the appeal - relevance of public interest to decision whether to grant a stay
STATUTORY CONSTRUCTION – whether appeal rights abolished or affected by repeal of the statutory provision creating those rights – effect of transitional provisions of National Disability Insurance Scheme (Workers Checks) Act 2018 (NSW) on appeal rights under cl 17 of Sch 3 of the Civil and Administrative Tribunal Act 2013 (NSW) – Appeal rights preserved and no new appeal right to the Appeal Panel created
COSTS – costs application by the respondent – principles – withdrawal of appeal by the appellant - no hearing on the merits – costs application dismissed
APPEALS – extension of time - application for extension of time to lodge appeal – no satisfactory explanation for delay – no fairly arguable error on a question of law or other error requiring leave to appeal – application for extension of time refused – appeal dismissed COSTS – special circumstances – indemnity costs
Judgment of
G Blake AM SC, Principal Member
K Robinson, Principal Member
APPEAL- whether timber decking on balconies and terraces is lot property or common property- consideration of provisions defining lot property and common property in the Strata Schemes (Freehold Development) Act 1973 NSW and regulations- whether a bylaw is void for uncertainty.
Judgment of
S Westgarth, Deputy President
R Titterton OAM, Senior Member
APPEALS –– from decision of NSW Civil and Administrative Tribunal (NCAT) to affirm decision of NSW Trustee to sell protected person’s house –– principles governing decisions made under NSW Trustee and Guardian Act 2009 (NSW) –– no error on question of law –– no breach of procedural fairness –– no apprehended bias –– no misapplication of law –– leave to appeal refused –– no obvious factual error of unorthodox approach to fact-finding –– no other basis on which leave to appeal should be granted APPEALS –– interpreters –– no procedural unfairness where NCAT did not arrange for an interpreter for protected person in circumstances of case
ADMINISTRATIVE LAW – administrative review – privacy – whether information collected – information unsolicited – no obligation for agency to proactively inform person that it holds personal information – request to amend must be specific – extent of obligation to ensure accuracy of information before use – no general discretion to make orders under s 52 of the Privacy and Personal Information Protection Act 1998 (NSW) absent a finding of a contravention of an IPP, privacy code of practice or disclosure of personal information held in a public register
APPEALS – appeal from a discretionary decision to refuse set-aside application made under Clause 9 of the Civil and Administrative Tribunal Regulation 2014 (NSW) – no error of law or other appealable error established.
Judgment of
P Durack SC, Senior Member
D Ziegler, Senior Member
LAND LAW — Strata title — Owners corporation — Accounts and records of owners corporation —Inspection—Whether, in the circumstances relating to the lot owner’s request to allow inspection of documents, and in the events that occurred, providing a link to the electronically stored books and records of the owners corporation satisfied the requirement under s 182 (3) of the Strata Schemes Management Act 2015 (NSW) that the owners corporation make available for inspection the documents requested. APPEALS – question of law raised, namely whether the Tribunal did not address an important aspect of the appellant’s case.
Judgment of
P Durack SC, Senior Member
P H Molony, Senior Member
CONSUMER LAW-supply of services-contract to rebuild boat engine-services supplied did not comply with statutory guarantee of due care and skill-non-compliance with the guarantee caused need to replace the engine- quantum of damages recoverable under s267 (4) of the ACL -question of betterment. APPEALS-error of law-Tribunal did not ask itself the right question-need to redetermine question of quantum of loss in respect of the cost to replace the engine.
Judgment of
P Durack SC, Senior Member
D Goldman, Senior Member
CONUMER LAW - agent’s fees and charges – differing versions of the management agency agreement – agent’s claims for disbursements and consumer’s claims for disbursements APPEALS – whether significant new evidence reasonably available at the time of the hearing – error on a question of law – no jurisdiction to make an order in favour of the supplier in the supplier’s proceedings – whether decision not fair and equitable – whether decision against the weight of evidence
Judgment of
S de Jersey Principal Member
H Woods, Senior Member
APPEAL- Where Tribunal affirmed decision of agency declining to deal with application to provide information pursuant to Government Information (public Access) Act 2009- whether Tribunal constructively failed to exercise jurisdiction- whether Tribunal erred on question of law- whether leave to appeal should be granted
Judgment of
I R Coleman SC ADCJ, Principal Member
J Redfern PSM, Senior Member
APPEALS – procedure – time limits – extension of time LAND LAW – Strata Schemes Management Act 2015 (NSW) – refusal to appoint compulsory manager on a limited basis – whether leave to appeal should be granted.
Judgment of
G Sarginson, Deputy President
J Redfern PSM, Senior Member
APPEAL – whether appeal against evaluative determination of Tribunal pursuant to Anti-Discrimination Act 1977 (NSW) should be allowed – whether leave to appeal should be granted – whether leave should be granted to adduce further evidence – where no identifiable question of law or material error – non-publication orders
LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – whether error on a question of law established – whether otherwise leave to appeal should be granted – no error on a question of law established – no basis for leave to appeal established
Guardianship- whether appropriate to permit fresh evidence in appeal- whether leave to appeal should be granted - whether appeal should be allowed - whether some of the orders under appeal should be set aside and other orders substituted for them
Judgment of
I R Coleman SC ADCJ, Principal Member
J Moir, Senior Member
Dr M Wroth, Senior Member
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
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)
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