Appeal allowed: tribunal set aside a $15,500 order without letting the other side be heard (NCAT, 2026)

What happened

A company had a gate manufactured and installed at its premises by a fabrication and fencing company. The buyer applied to NCAT on 23 May 2025, relying on section 259 of the Competition and Consumer Act 2010 (the law that gives buyers the right to a remedy when goods or services fall short of the consumer guarantees), and asked for a full refund of $15,500 and removal of the gate, or damages, or orders that the installer fix the work. On 19 June 2025 the tribunal made orders by consent, meaning both sides agreed to them: by 22 August 2025 the installer or its contractor would remove, re-powder coat and re-install three panels and one post in a proper and workmanlike manner, the buyer would inspect the gates at the powder-coater before pick-up, and by 21 June 2025 the installer would install the gate-operating app on the buyer's phone while the buyer supplied mobile numbers for the GSM system. The orders noted that the agreement and the dismissal were in full and final satisfaction of the dispute, and the application was otherwise dismissed by consent.

On 6 March 2026 the buyer applied to renew the proceedings, saying the installer had not complied because the remedial work was defective. The renewal application was listed on 14 May 2026 for conciliation and a group list hearing. No one appeared for the installer. Both sides had been sent the usual notice of conciliation and hearing, which said that if you do not attend the matter may be finalised in your absence. The tribunal granted leave to renew, allowed the buyer to be represented, and ordered the installer to pay the buyer $15,500 immediately, described as a full refund for gates that were not of acceptable quality and had a major defect. It also ordered the installer or its contractor to attend a property to remove the existing fence and use its best endeavours to make good the site on or before 28 May 2026. Only oral reasons were given, and because neither side had asked for written reasons under section 62 of the Civil and Administrative Tribunal Act 2013, the Appeal Panel could not tell what evidence had been relied on or what findings were made.

On 19 May 2026 the installer filed an application to set aside the 14 May decision, signed on 15 May, saying its sole director had been suffering serious medical issues and could not attend or properly present his case, with supporting medical evidence attached. The medical evidence was not in fact attached. The application came with many pages of material, copied and annotated in a way the Appeal Panel found difficult to read, including documents annexed to a statutory declaration that did not comply with section 26 of the Oaths Act 1900 because it had not been witnessed by an Australian legal practitioner or a NSW justice of the peace, and the identity check had not been done. On 20 May the tribunal directed the installer to provide the missing certificate by 27 May and to serve the set-aside application on the buyer, reminding it that a medical certificate should state the illness and the reason the person could not attend, and that a bare statement of inability to attend is not enough. That same day the buyer's solicitor opposed the application, asking the tribunal to dismiss it on the papers or, if the certificate was allowed in, to give the buyer a chance to respond to it first.

On 22 May the installer filed a second certificate, dated 21 May and signed by a different doctor, certifying that the director was unable to work from 13 to 15 May 2026 because of cough and fever. The installer did not serve that certificate on the buyer, despite the direction to do so; its director told the Appeal Panel he had been confused or panicked and thought the material only had to go to the tribunal. On 28 May 2026 the tribunal decided the set-aside application without a hearing, set aside the 14 May orders and reinstated the proceedings, reasoning that a medical certificate confirming unfitness had been received, that there is a strong public policy in favour of letting litigants have their case decided on the merits, and that the orders had been obtained in the installer's absence. The Appeal Panel also commented on the director's conduct on the hearing day: even accepting he was unwell in bed, he could have sent one of the two employees, attended by video link, or sought an adjournment and explained his position, giving the buyer a chance to respond.

What each side wanted

The buyer appealed on two related grounds: that the 28 May decision denied it procedural fairness, because the orders were made without it being given the chance to see or respond to the medical evidence, including whether that certificate met the standard discussed in the cases the tribunal itself had cited; and that the decision was not fair and equitable and caused a substantial miscarriage of justice. The installer's position was that its director had been too unwell to attend the hearing, and its set-aside material sought to show that it had in fact complied with the June 2025 consent orders so the dispute should be decided with both sides present. At the appeal hearing the installer conceded that the buyer had not been given copies of the medical evidence relied on for the set-aside application.

What the tribunal decided

The Appeal Panel allowed the appeal. It set aside the tribunal's decision of 28 May 2026, which had set aside the earlier decision of 14 May 2026, and remitted the set-aside application to the tribunal for reconsideration. No money order was made on the appeal, and the Appeal Panel expressly did not decide the underlying dispute about the gate or whether the consent orders had been complied with.

The Appeal Panel considered substituting its own decision or running a new hearing, and the parties had been put on notice at the call over on 10 July 2026 that a new hearing was possible and both said at the hearing that they were content with that course. It decided remitting was the appropriate step because it did not have the oral evidence given by the buyer at the first hearing, and that evidence would matter when assessing whether the installer has an arguable defence, which is a key question in a set-aside application. The practical effect is that whether the 14 May orders, including the $15,500 payment, stand or are set aside is now back before the tribunal to decide again.

Why the tribunal decided it that way

The power to set aside an NCAT decision is in clause 9 of the Civil and Administrative Tribunal Regulation 2013. Clause 9(1)(b) lets the tribunal set aside a decision made in a party's absence where it is satisfied the absence meant the party's case was not adequately put. An application must normally be made within 7 days of the decision. Importantly, clause 9(4) says that unless the parties consent to the order, the tribunal may not make it unless it has given the parties an opportunity to make submissions about the proposed order and has taken those submissions into account.

The Appeal Panel treated a clause 9 set-aside decision as an ancillary decision under the Civil and Administrative Tribunal Act 2013, so an appeal lies as of right on a question of law, or with permission on other grounds. Because clause 9 uses the word may, the decision is discretionary, and a discretionary decision can only be overturned in limited circumstances, including where there has been a material breach of procedural fairness. Procedural fairness, in plain terms, means each side gets a real chance to know what is being put against it and to answer it before a decision is made.

On the facts, the Appeal Panel found the tribunal failed to give the buyer a reasonable opportunity to be heard on the factual and legal issues raised by the set-aside application. The buyer had expressly asked to see the medical material and make submissions about it. The installer conceded the buyer never received it. The Appeal Panel said that chance to be heard matters even more in clause 9 proceedings, because those proceedings are ones in which a hearing is not required and the tribunal can decide on the papers. The failure deprived the buyer of the chance to argue what weight, if any, the medical certificate deserved, and the error was material because there is a real possibility the outcome could have been different. That was enough to allow the appeal on the first ground, so the second ground did not need to be dealt with.

The Appeal Panel also made clear that a party asking the tribunal for an indulgence has to follow the tribunal's directions in all material respects. It accepted that self-represented parties, including a company effectively run and represented by its sole director, can become confused or make honest mistakes. But the failure to serve the second certificate was unfair to the buyer and could have led the tribunal into error, because the tribunal would ordinarily assume its service directions had been followed.

What this means if you are in a similar position

If you are in a similar position, this decision shows how NCAT treats the two sides of a decision made when one party is missing. A notice of hearing that says the matter may be finalised in your absence means what it says, and a party who cannot attend is expected to do something about it on the day, such as sending someone else, asking to appear by video, or seeking an adjournment and explaining why. It also shows what the tribunal looks for in a medical certificate used to explain a non-appearance: not just that a person was unfit for work, but why they could not attend, since a bare statement of inability to attend has been held to be insufficient.

The decision also shows how strictly the right to be heard is applied to set-aside applications. Where the rule says the tribunal must give the parties an opportunity to make submissions about a proposed order and take them into account, a decision made on the papers using material one side never received can be overturned, even though the tribunal's own reasons were sympathetic and the policy of deciding cases on their merits is a strong one. Serving material on the other side, and filing documents the way the tribunal directs, is part of that. The decision shows the same point about statutory declarations: a declaration that is not properly witnessed and identity-checked carries much less weight.

For people whose underlying problem is faulty goods or workmanship, the consumer guarantee route in this case is a common one, including an agreement by consent that the supplier will come back and fix the work. Where that agreed rectification is said to have failed, the question becomes whether the orders were complied with, which is a question of evidence from both sides. In disputes like this the step most people take first is a written demand or notice to the business setting out the fault and the remedy being asked for, and only then an application to the tribunal if there is no resolution.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and faulty goods and refunds.

Source: Peak Manufacturing Pty Ltd t/as Metal Roofing Warehouse v A Network Production Engineering Pty Ltd t/as Auto Gates & Fencing [2026] NSWCATAP 301 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.