Can I Challenge an NCAT Strata Decision: Appealing an NCAT Decision in NSW

The New South Wales Civil and Administrative Tribunal (NCAT) is a vital institution for resolving a wide range of disputes, from strata matters to consumer and commercial issues. However, there may be instances where individuals or parties involved in NCAT proceedings believe that a decision is not legally sound or fair. In such cases, understanding the avenues for appeal is paramount.

This article explores the intricacies of appealing decisions rendered by NCAT. We delve into the legal framework, the grounds for appeal, and the critical considerations that influence whether leave to appeal is granted. Whether you are a participant in a strata dispute or facing any other NCAT-related issue, having a comprehensive understanding of the appeal process is essential to safeguard your rights and interests.

Table of Contents

Grounds to Appeal an NCAT Decision in NSW

Under Section 80 of the New South Wales Civil and Administrative Tribunal Act 2013 (the Act), the framework for appeals from internally appealable decisions is clearly defined. An appeal can be made on any question of law as a matter of right. However, for grounds other than legal questions, the leave of the Appeal Panel is required. This provision is further nuanced for appeals coming from the Consumer and Commercial Division, which hears all strata disputes, as outlined in clause 12 of Schedule 4 of the Act, which places additional restrictions on the question of leave.

The Act, in Section 32, defines an ‘internally appealable decision’ as a general decision made by the Tribunal. To understand what constitutes a general decision, reference is made to Section 29 of the Act, which describes it as a decision made in the exercise of the Tribunal’s general jurisdiction. This jurisdiction is determined by reference to legislation outside of the NCAT Act itself – in the case of strata disputes, the Strata Schemes Management Act 2015 is the legislation of importance.

It’s important to note that an internal appeal within the NCAT framework is not intended to be a re-hearing of the original decision. It is not an opportunity for a party who is dissatisfied with the outcome to simply re-argue their case. Instead, the appeal process is designed to review the legal basis of the decision or, with the appropriate leave, other specific grounds that do not pertain directly to questions of law. This framework ensures that the appeals process is focused and does not simply duplicate the proceedings of the original decision. The time limit for filing an appeal is typically within 28 days of the decision, unless an extension has been granted. 

Decisions Can be Appealed on Questions of Law

In the case of Lehner v The Owners – Strata Plan No 65870 [2023], reference was made to the earlier decision in Prendergast v Western Murray Irrigation Ltd [2014], where the Appeal Panel delineated a non-exclusive list of questions of law. These questions guide the grounds on which an appeal may be based, as discussed below.

Failure to Provide Proper Reasons

In NSW Land and Housing Corporation v. Orr [2019], the NSW Court of Appeal established principles for assessing the adequacy of reasons in tribunal decisions. The court’s role is to ensure reasons meet a minimum standard, with the level of detail required varying depending on the decision-maker and the nature of the decision. Tribunals, due to their workload, are held to a more relaxed standard compared to appellate courts. Minimum requirements under the NCAT Act include findings on material facts, understanding of the law, and reasoning processes. Tribunals must provide basic explanations for their decisions without needing extensive detail or addressing every disputed evidence point. The reasons should be read as a whole and in context, without excessive scrutiny or a focus on linguistic precision. This approach acknowledges the practical aspects of tribunal operations while ensuring fairness and clarity in decision-making.

In the Lehner case, the appellant argued that the Tribunal had not correctly applied the principles related to a costs application in a scenario where a party had withdrawn their application. Specifically, the Tribunal deemed that the appellant’s late withdrawal of their application during the final hearing constituted special circumstances that justified an order for costs. However, the Appeal Panel disagreed with this assessment. The Appeal Panel clarified that their role was not to determine whether they would have made a different decision compared to the Tribunal, but rather to ascertain whether the Tribunal had committed an error in legal principle. This could include considering irrelevant factors, misunderstanding facts, neglecting to give adequate weight to significant matters, or issuing an order that was manifestly unreasonable or unjust, suggesting an underlying error.

The case highlighted that the Appeal Panel’s role is not to decide if they would have reached a different decision but to determine if the Tribunal made a legal error, considered irrelevant matters, misunderstood the facts, overlooked material matters, or made an unreasonable or unjust order.

Failure to Afford Procedural Fairness

In the context of procedural fairness within the framework of Tribunal proceedings, Section 38 of the Act plays a pivotal role. This section outlines the general procedures to be followed by the Tribunal. Specifically, Section 38(2) of the Act explicitly mandates that the Tribunal’s procedures must be in alignment with the principles of natural justice. Additionally, Sub-sections 5 and 6 of the same section incorporate elements that further define and ensure procedural fairness.

It’s important to note that procedural fairness primarily concerns the fairness of the proceedings themselves, rather than the outcome or decision of the Tribunal. This means that the focus is on the process by which a decision is reached, ensuring that it is conducted in a fair and equitable manner. This includes providing all parties with an equal opportunity to present their case, a fair hearing, and an unbiased decision-making process. Procedural fairness is a fundamental aspect of legal proceedings and is crucial in maintaining the integrity and trustworthiness of the Tribunal’s process.

Other Reasons for Appealing to the NCAT

In addition to the key grounds of appeal discussed above, the NCAT may consider an appeal due to the following reasons:

  • Misidentification of the Issue or Asking the Wrong Question: An appeal may be based on the Tribunal’s failure to correctly identify the key issue in a case or if it posed an incorrect question in its deliberations.
  • Failure to Consider Relevant Factors or Considering Irrelevant Factors: An appeal can be based on whether the Tribunal failed to take into account mandatory considerations or considered factors that were irrelevant to the case.
  • No Evidence to Support a Finding of Fact: An appeal may be warranted if there is a lack of evidence to support the Tribunal’s factual findings.
  • Unreasonableness of the Decision: If the Tribunal’s decision is so unreasonable that no reasonable decision-maker would have made it, this can form the basis for an appeal.

These criteria provide a framework for assessing whether an appeal is legally founded, focusing on procedural and legal correctness rather than the merits of the decision itself.

Leave to Appeal for Approaching NCAT Appeal Panel

Leave to appeal from decisions made in the Consumer and Commercial Division of the NCAT (New South Wales Civil and Administrative Tribunal) is granted under specific circumstances as outlined in clause 12(1) of Schedule 4 of the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice, determined against any of the points discussed below.

Unfair and Inequitable Decision

In the context of appeals from the Consumer and Commercial Division, establishing a ‘substantial miscarriage of justice’ under Cl 12(1) of Schedule 4 involves demonstrating a significant possibility that a different, more favourable outcome would have occurred without the alleged errors. This principle, as stated in Collins v Urban [2014], requires a clear likelihood of a different result, beyond mere argument.

Further, even when a substantial miscarriage of justice is established, the Appeal Panel must decide whether to exercise discretion to grant leave to appeal under s 80(2)(b). This decision aligns with court principles, where leave is granted only in cases with issues of principle, general public importance, or clear injustice, as articulated in Secretary, Department of Family and Community Services v Smith. Merely proving the original decision was arguably wrong is insufficient for leave to be granted. The threshold for appealing involves more than contesting the trial judge’s decision; it requires significant doubt or clear injustice warranting reconsideration.

Decision Was Against the Weight of Evidence

In cases where the decision of the Tribunal is being appealed, one significant ground for appeal can be that the decision was against the weight of evidence. This implies that the Tribunal’s decision does not align with the majority or the most convincing portion of the evidence presented. When an appeal is based on this ground, it suggests that the evidence, when fairly and completely considered, supports a different conclusion than the one reached by the Tribunal.

For an appeal to be successful on this basis, it generally needs to be demonstrated that the Tribunal’s decision was not just slightly unsupported by the evidence, but significantly misaligned with it. This is a critical consideration, as tribunals are typically given deference in their role as fact-finders. Therefore, to argue that a decision was against the weight of evidence, it must be shown that the Tribunal made a clear error in evaluating the evidence or that its conclusion was unreasonable given the evidence presented.

Emergence of Fresh Evidence

Introducing significant fresh evidence that was not reasonably available at the time of the initial proceedings is a key consideration. The Lehner case provides insight into this aspect of appeals.

In the Lehner case, the appellant attempted to introduce new evidence, including email correspondence, a statement dated 16 February 2023, and a copy of the respondent’s managing agency agreement. However, this evidence was not admitted at the appeal hearing. The rationale for this decision is grounded in the principle that for evidence to be considered ‘new’ in an appeal from the Consumer and Commercial Division, it must not have been reasonably available during the original Tribunal hearing.

The limitation on fresh evidence to that which was not reasonably available at the first hearing is crucial for ensuring the finality of proceedings. It encourages parties to present all their evidence comprehensively in the initial hearing. Allowing parties to add new evidence after a decision could lead to continuous hearings and delayed finality of the case. Fresh evidence is distinguished from new evidence in that it was not available during the earlier proceedings, whereas new evidence refers to information that was available but not utilised.

In Lehner’s case, the Appeal Panel determined that the email correspondence and the managing agency agreement were readily available at the time of the original hearing. The appellant’s oversight in forgetting these documents did not qualify them as ‘new’ under the criteria set by clause 12 of Schedule 4 of the NCAT Act. Therefore, the evidence was not admitted in the appeal.

Key Considerations for Granting Leave to Appeal

In Collins v Urban [2014], the operation of specific provisions related to granting leave to appeal was thoroughly examined. Even when the Appeal Panel determines that one or more conditions for an appeal are met, it still faces the crucial decision of whether or not to actually grant leave to appeal. This decision-making process involves several key considerations:

  • Matters of Principle and Public Importance: The Panel often evaluates whether the appeal involves significant issues of principle or questions that hold substantial public importance. These factors elevate the appeal beyond a mere disagreement over the initial decision to matters that could have broader legal or societal implications.
  • Clear Injustice: A primary consideration is whether there appears to be a clear injustice as a result of the original decision. If the appeal has the potential to rectify a significant wrong or injustice, this increases the likelihood of leave being granted.
  • Cost Considerations and Proportionality: The Appeal Panel also assesses the costs that the appeal process would entail, both for the parties involved and for the Tribunal itself. This includes considering whether the costs are proportionate to the importance and complexity of the case. If an appeal is expected to incur high costs relative to its significance, the Panel may be less inclined to grant leave.

The appeal process within the NCAT framework is crucial for ensuring the legality and fairness of decisions made by the Tribunal. Whether you find yourself in a strata dispute or facing any other issue within the NCAT’s jurisdiction, understanding your rights and the grounds for appeal is essential. If you believe you have valid grounds to appeal a decision or require expert legal guidance throughout the process, our experienced team at PBL Law Group is here to assist you.

Contact us today to discuss your case, evaluate the merits of your potential appeal, and receive expert legal counsel tailored to your specific situation.

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Authored by

Raea Khan

Director Lawyer

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law