Nu-Stone Building Pty Ltd v McInerney - [2023] NSWSC 940

Supreme Court

New South Wales

Medium Neutral Citation: Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940
Hearing dates: 21 June 2023
Date of orders: 11 August 2023
Decision date: 11 August 2023
Jurisdiction: Common Law
Before: Wright J
Decision:
(1)   The plaintiff has leave to appeal.
(2)   The appeal is allowed.
(3)   The decision of the Appeal Panel made on 14 November 2022 is set aside.
(4) Pursuant to s 83(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the matter is remitted to the Appeal Panel of the Tribunal to be heard and decided again.
(5)   The defendants are to pay the plaintiff’s costs of the appeal.

Catchwords:
APPEALS – leave to appeal from decisions of NSW Civil and Administrative Tribunal (“NCAT”) Appeal Panel to Supreme Court – whether Appeal Panel gave adequate reasons – statutory obligation on Appeal Panel to provide the reasoning process that led it to the conclusions in made in its written reasons – review of written reasons as a whole – leave to appeal granted – appeal allowed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 27(1), 34(1)(c), 62, 78, 80, 81, 83
Home Building Act 1989 (NSW), ss 42A, 48K, 48L
Administrative Decisions Review Act 1997 (NSW), s 63
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254
Brandy v Human Rights and Equal Opportunity Commission (1985) 183 CLR 245; [1995] HCA 10
Concoran v Far [2019] NSWSC 1284
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Jones v First Tier Tribunal [2013] UKSC 19; [2013] 2 AC 48
Lloyd v Thornbury [2019] NSWCA 154
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285
NuStone v McInerney [2022] NSWCATCD 23
Scoway Pty Limited v Faxon Pty Limited [2004] FCA 249
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 4
Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

Category: Principal judgment
Parties:
Nu-Stone Building Pty Ltd (Plaintiff)
Garry John McInereny (First Defendant)
Gladys Bridget McInerney (Second Defendant)
Representation:
Counsel:
F Corsaro SC with M Klooster (Plaintiff)
M McCulloch SC with M Galvin (Defendants)
Solicitors:
Sachs Gerace Lawyers (Plaintiff)
Walker Hedges Forestville (Defendants)

File Number(s): 2022/00364333
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Appeal Panel

Citation:

[2022] NSWCATAP 285

Date of Decision:

14 November 2022

Before:

R C Titterton OAM, Senior Member
C Mulvey, Senior Member

File Number(s):

AP 2022/0037784
AP 2022/00053249

Judgment

Introduction

By a summons filed on 2 December 2022, the plaintiff, Nu-Stone Building Pty Ltd, sought to appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 940
Decision Date: 11 August 2023

CaseChat Overview and Summary

In the case of Nu-Stone Building Pty Ltd v McInerney, the appeal was against decisions made by a Panel of the NCAT, which had jurisdiction under the Civil and Administrative Tribunal Act 2013 (NSW). The dispute arose from an order made by the Panel, which was appealed by Nu-Stone Building Pty Ltd, the first appellant, and McInerney, the second appellant. The appellants contended that the Panel failed to provide adequate reasons for its decision, thereby breaching a statutory obligation to provide the reasoning process that led to its conclusions.

The primary legal issue before the court was whether the Panel had provided adequate reasons for its decision and, if not, whether leave to appeal should be granted. The court had to determine if the Panel's written reasons were sufficient in fulfilling the statutory requirement to explain the reasoning process that led to its conclusions. This involved a detailed review of the written reasons to assess whether they met the legislative criteria.

The court found that the Panel had not provided adequate reasons for its decision, as the written reasons did not fully explain the reasoning process that led to the conclusions. The court held that the Panel's written reasons were insufficient because they did not demonstrate a clear understanding of the evidence and how it led to the conclusions reached. Consequently, the court granted leave to appeal and allowed the appeal. The court emphasised the importance of adequate reasons in administrative law and the need for tribunals to clearly articulate their reasoning processes.

The final orders of the court were that the appeal was allowed, the decisions of the Panel were set aside, and the matter was remitted to the NCAT for reconsideration in accordance with the court's reasons. The court did not make any orders as to costs.

Orders