10 October 2023
Changes to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) commenced on 20 September 2023 following assent to the Civil and Administrative Tribunal Amendment Act 2023 (NSW) (Amendment Act).
The Amendment Act implements recommendations that arose out of the Report of the Statutory Review of the NCAT Act, tabled in December 2021. This report concluded that the NCAT Act was generally appropriate to achieve its objectives specified in section 3. Changes to support the resolution of proceedings were proposed and have now been implemented.
Many of the amendments relate to proceedings under the Tribunal’s Guardianship Division. However, some procedural changes will have an impact on proceedings relating to other divisions, including the Consumer and Commercial Division, which is the focus of this article.
Written reasons for decisions
Section 62(2) of the NCAT Act requires the Tribunal, upon request by a party, to provide a written statement of reasons for a decision.
The Amendment Act’s insertion of section 62(2A) exempts certain decisions from this requirement. This includes a decision to make an order dispensing with a hearing, a decision to grant an adjournment, a decision to not award costs (except if special circumstances were argued), a decision to award costs in the Consumer and Commercial Division or on internal appeal from that division, to make an order by consent between parties and other minor procedural decisions that do not have a final or determinative impact on the rights of the party.
According to the Amendment Act’s second reading speech, this will allow the Tribunal to ensure that resources are focused on the efficient resolution of substantive issues in proceedings.
This amendment mirrors section 122(4) of the Queensland Civil and Administrative Tribunal Act 2009 which states that the general right to written reasons does not include specified decisions.
It is unclear how section 62(2A) (c) and (d) sit together, if for example, there was a decision to not award costs where special circumstances were argued in the Consumer and Commercial Division.
More generally, by exempting the Tribunal from providing written reasons for decisions to award costs in the Consumer and Commercial Division, parties may be hindered in deciding whether to appeal a costs decision or in formulating their grounds of appeal. It should be remembered that the Consumer and Commercial Division includes building claims with a value up to $500,000, where costs can be significant.
Enforceability of a Summons
Section 73(2) of the NCAT Act provides that a person is guilty of contempt of the Tribunal if the person, without reasonable excuse, does or omits to do anything that, if the Tribunal were a court of law having the power to commit for contempt, would be contempt of that court.
Before the Amendment Act, there was uncertainty as to whether rule 33.12 of the Uniform Civil Procedure Rules 2005 (NSW) applied to a summons issued by the Tribunal under section 48 of the NCAT Act. Rule 33.12 provides that failure to comply with a subpoena without a lawful excuse was contempt of court. A summons is the Tribunal’s equivalent to a subpoena.
The Amendment Act has clarified this ambiguity by inserting section 73(2A). This subsection explicitly provides that a person is guilty of contempt of the Tribunal if they fail to comply with a summons issued by the Tribunal, without a reasonable excuse.
It is worthwhile remembering that in relation to contempt of the Tribunal, the Tribunal may exercise the same procedural powers as the District Court. That includes the power to issue a warrant, to keep in custody pending disposal of the charge and to issue a maximum fine of 20 penalty units or 28 days imprisonment. Both good reasons to take compliance seriously.
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Authors: Christine Jones & Caitlyn Trussel
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Olcayto v Paintalo Group Pty Ltd  NSWCATCD 95
BUILDING & CONSTRUCTION – Waiver Repudiation – defects – Section 79O of the Fair Trading Act 1987.
Fair Trading Act 1987; Home Building Act 1989; Home Building Regulation 2014.
Gilliland v Kingdom Building Pty Ltd  NSWCATCD 87
COSTS – where proceedings not determined on the merits.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules (NSW) 2014; Home Building Act 1989 (NSW).
Brown v Max Pattison Pty Ltd and Travis-Almond  NSWCATCD 86
REAL PROPERTY – BUILDING and CONSTRUCTION – HOME BUILDING – rights on termination of contract – entire contract with progress payments on account – substantial failure of consideration – refund of monies paid.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
Vasan v Georges Construction & Building Services Pty Ltd  NSWCATCD 84
BUILDING & CONSTRUCTION: Residential building work – work by unlicensed Builder – work incomplete and in breach of warranties in Home Building Act.
Home Building Act 1989; Civil and Administrative Tribunal Act 2013.
Chalboub v Commissioner for Fair Trading  NSWCATOD 142
ADMINISTRATIVE LAW – REVIEW OF DECISION BY EXTERNAL DECISION-MAKER – decision to refuse contractor licence pursuant to the Home Building Act 1989 (NSW) – fit and proper person.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Firearms Act 1996 (NSW); Home Building Act 1989 (NSW).
Lee v Taylor  NSWCATAP 267
APPEAL – whether appellant establishes error on question of law – whether appellant establishes grounds for leave to appeal – whether “new evidence” relied on by appellant was not reasonably available at time of original hearing.
Civil and Administrative Tribunal Act 2013 (NSW), s 80, cl 12 of Sch 4; Residential Tenancies Act 2010 (NSW), ss 19, 21, 38, 39, 40, 41, 47; Residential Tenancies Regulation 2019 (NSW), cl 34.
Hamdan v Commissioner for Fair Trading  NSWCATOD 147
OCCUPATIONS – other occupations – electrical contractors and electricians – whether the Applicant is a fit and proper person to hold the licence.
Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
SafeWork NSW v Denbrok Constructions Pty Limited  NSWDC 407
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties.
COSTS – prosecutor’s costs – capacity to pay.
Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Fines Act 1996 (NSW); Work Health and Safety Act 2011 (NSW).
Mazurek v Fisniku  NSWCATCD 81
BUILDING AND CONSTRUCTION – whether costs plus contract replaced by fixed price contract – validity of termination – finding of mutual termination.
ESTOPPEL – promissory estoppel – estoppel by convention.
BUILDING AND CONSTRUCTION – cost of completion – alleged overcharging – storage costs.
Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 60; Civil and Administrative Tribunal Regulation (NSW); Civil and Administrative Tribunal Rules 2014 (NSW) – rr 38, 39; Civil Procedure Act 2005 (NSW) – s 100; Home Building Act 1989 (NSW) – s 18B.
Anand and Anand v Macasa Homes Pty Ltd; Anand and Kaur v Macasa Homes Pty Ltd; Anand v Macasa Homes Pty Ltd; Singh v Macasa Homes Pty Ltd  NSWCATCD 76
HOME BUILDING – recovery of payment under a preliminary agreement.
Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).
Jones v The Owners – SP 93087  NSWCATCD 73
LAND LAW – Strata scheme – s 237 Strata Schemes Management Act 2015 (NSW) – appointment of compulsory strata manager – where compulsory strata manger already appointed – whether circumstances justify a further appointment of compulsory strata manager – whether circumstances justify extension of the existing order.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989; Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020; Strata Schemes Management Act 2015.
Goodman v Commissioner for Fair Trading  NSWCATAP 260
OCCUPATIONAL – Home Building Act 1989 (NSW) – application for restoration of supervisor certificate previously held by appellant – whether appellant took all reasonable steps to avoid external administration – whether appellant is a fit and proper person – whether error established.
Administrative Disputes Review Act (NSW) 1997 s63; Civil and Administrative Tribunal Act 2013 (NSW) s 80(2); Home Building Act 1989 s25(1)(a), s33B, 33D.
Actol Pty Ltd v Rise Products Pty Ltd; Rise Product Pty Ltd v Actol Pty Ltd  NSWCATAP 259
APPEALS – statutory interpretation – when amendment increasing Tribunal’s monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect – questions of law – adequacy of reasons as a question of law – need to identify questions of law with clarity.
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Corporations Act 2001 (Cth); Design and Building Practitioners Act 2020 (NSW); Fair Trading Act 1987 (NSW); Fair Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW); Home Building Act 1989 (NSW); Interpretation Act 1987 (NSW); Subordinate Legislation Act 1989 (NSW); Worker's Compensation Act 1987 (NSW).
Benson v NSW Self Insurance Corporation  NSWCATCD 103
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – claims.
Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW); Residential Tenancies Act 2010 (NSW) Act 2013 (NSW).
Hardwicke v Paul Richards Plumbing Pty Ltd  NSWCATCD 102
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – warranties implied into residential building contracts – due care and skill – compliance with specifications – fitness for purpose – applicant repudiated contract by refusing respondent access to complete work – scope of work in contract not fit to achieve the purpose disclosed by the applicant – applicant had not paid full contract price – no evidence to establish what it would have cost the applicant to achieve the disclosed purpose – Tribunal unable to assess whether respondent entitled to any further payment – order made that applicant not liable for further payment.
Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
The Owners Strata Plan 92156 v Professional Construction Services Pty Ltd  NSWCATCD 100
BUILDING & CONSTRUCTION; Home Building – breach of statutory warranties – where work involved the conversion to residential use of a commercial space – scope of contract – effect of implied warranties.
Home Building Act 1989.
Playpoint Pty Limited v Gerflor Australasia Pty Ltd  NSWCATCCD 110
CONSUMER LAW – supply of services – guarantee of due care and skill – advice and information – guarantee of fitness for purpose – misleading and deceptive conduct – causation.
Australian Consumer Law; Fair Trading Act 1987 (NSW); Fair Trading Regulation 2019 (NSW); Home Building Act 1989 (NSW).
Champion Homes Sales Pty Ltd v Biggs; Biggs v Champion Homes Sales Pty Ltd  NSWCATCD 117
BUILDING AND CONSTRUCTION – contract – termination – repudiation.
BUILDING AND CONSTRUCTION – contract – agreed damages – penalty.
Home Building Act 1989 (NSW).
Scozza v Jih Building Design Pty Ltd  NSWCATCD 120
CONSUMER LAW – consumer guarantees – supply of services – guarantee as to due care and skill – guarantee as to fitness for a particular purpose – guarantee as to reasonable time for supply.
Australian Consumer Law 2010 (NSW); Fair Trading Act 1987 (NSW); Fair Trading Regulation 2019 (NSW); Home Building Act 1989 (NSW).
Treasury and Revenue Legislation Amendment Act 2023 No 26 – assented to 27 September 2023
Civil and Administrative Tribunal Amendment Act 2023 No 22 – assented to 20 September 2023
Regulations and miscellaneous instruments
Transport Legislation Amendment (Penalties, Fees and Charges) Regulation 2023 (SI 550) – commenced 1 October 2023
Civil Liability (Non-economic Loss) Amendment Order 2023 (SI 546) – commenced 1 October 2023
Public Interest Disclosures Regulation 2022 (SI 549) – Published 1 October 2023
Administrative Arrangements (Administrative Changes – Minister for Domestic Manufacturing and Government Procurement) Order 2023 (SI 544) – commenced on 28 September 2023
Byron Local Environmental Plan Amendment (Housing) 2023 (EPI 541) – LW 29 September 2023
Guyra Local Environmental Plan 2012 (Amendment No 5) (2023 EPI 553) – LW pushed 29 September 2023
Sutherland Shire Local Environmental Plan (Exempt and Complying Development Codes) Amendment 2023 (EPI 555) – LW published 29 September 2023
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.