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[2025] NSWCATAP 148
General information, not legal advice.
NCAT Appeal Panel
2025-06-24
D Robertson, Principal MemberM Deane, Senior Member
Original judgment source is linked above.
(1) Appeal allowed.
(2) Order 1 made by the Tribunal in proceedings 2022/00394284 (formerly HB22/56496) on 28 June 2024 is set aside.
(3) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for reconsideration consistently with these reasons and otherwise according to law on the evidence previously filed and such further evidence, including evidence updating evidence previously filed, as the Tribunal may allow.
(4) The parties are to file any written submissions in relation to the costs of the appeal within 14 days of the date of publication of these orders and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the issue of costs may be determined on the basis of the written submissions and without a hearing in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Hafezi
Luff Pier Pty Limited [2025] NSWCATAP 148
Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91
Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
Chapman v Taylor [2004] NSWCA 456
Corcoran v Far [2019] NSWSC 1284
Devel Pty Ltd v Lewis; Lewis v Devel Pty Ltd [2021] NSWCATAP 395
Donohoe v Albulario [2025] NSWSC 9
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kajula Pty Ltd v Downer EDI Ltd (2024) 76 VR 75; [2024] VSCA 236
Moore (a Pseudonym) v R [2024] HCA 30; 98 ALJR 1119
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Rodger v De Gelder [2015] NSWCA 211
Supple v Building Appeals Board [2015] VSC 83
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
"The Error of Law
5. The Owner relies upon the fifth ground in House v The King (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ. In particular, that as the Tribunal has erred in the exercise of its discretion to make a money order pursuant to schedule 2 [sic], clause 8(4) of the NCAT Act by failing 'to take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution of his if it has the materials for doing so.'
6. In Legend Signage Pty Ltd v Australian Managed Print Solutions Pty Ltd [2018] NSWCATAP 269, the Appeal Panel stated at [16]-[18]:
"8. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the appeal panel identified as an example of an error of law, whether the Tribunal had failed to consider a relevant (that is, a mandatory) consideration.
9. This error was manifest at paragraph 72 of [the renewal decision]. The Tribunal said (at [71] and [72]) that:
"95. It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]- [103]. Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf [(2001) 206 CLR 323; [2001] HCA 30] at [41] (Gaudron J)."
(1985) 4 NSWLR 139
(2003) 77 ALJR 1088
(1936) 55 CLR 499
(2024) 76 VR 75
(2022) 275 CLR 582
(2001) 206 CLR 323