Anthony v Chris Savage Pty Ltd

Case [2003] NSWSC 698


CITATION: Anthony v Chris Savage Pty Ltd & Anor [2003] NSWSC 698
HEARING DATE(S): 28 & 29 July 2003
JUDGMENT DATE:
1 August 2003
JURISDICTION:
Common Law
JUDGMENT OF: Sperling J at 1
DECISION: Time for appeal extended; Appeals allowed; Parties to bring in short minutes.
CATCHWORDS: Practice & Procedure - Consumer, Trader & Tenancy Tribunal - whether order a self-executing order - power to extend time to avoid operation of such an order - error of law in failing to do so - Appeals - extension of time to appeal
LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001, s28
Fair Trading Tribunal Act 1998
Supreme Court Rules 1970, Pt 51A r3
CASES CITED: FAI General Insurance Company Limited v Southern Cross Exploration NL (1987-1998) 165 CLR 268
Gallo v Dawson (1990) 93 ALR 479
Moulieux v Girvan NSW Pty Ltd (rec and mgr apptd) (NSWCA, 20 September 1991, unreported, Kirby P, Priestley and Handley JJA)
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470.
Re Manchester Economic Building Society (1883) 24 Ch D 488

PARTIES :

Christina Anthony
Chris Savage Pty Ltd
Joseph & Justina Stephens t/a J & J Traditional Rendering & Plastering
FILE NUMBER(S): SC 10309/03
COUNSEL: Mr G Segal for the Plaintiff
Mr S Bliim for the First Defendant
No Appearance for the Second Defendant
SOLICITORS: Segal Litton & Chilton for the Plaintiff
Macquarie Legal Practice for the First Defendant
No Appearance for the Second Defendant
LOWER COURTJURISDICTION: Fair Trading Tribunal; Consumer, Trader & Tenancy Tribunal
LOWER COURT FILE NUMBER(S): BU2000/5370; HB02/27309
LOWER COURT
JUDICIAL OFFICER :
Member Smith; Member Moore

- 7 -

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      Sperling J

      Friday, 1 August 2003

      10309/03 Christina Anthony v Chris Savage Pty Ltd & Anor

      Judgment

1 His Honour: Christina Anthony seeks extension of the time for appeal and (subject thereto) appeals from two decisions of the Consumer, Trader and Tenancy Tribunal made respectively on 27 February 2002 and 19 December 2002.

2 The notice of appeal was filed on 6 February 2003. Time for appeal, subject to any extension of time, is 28 days.

3 The appeals are limited to questions of law.

4 The first proceeding (BU2000/5370) was commenced by application filed on 2 May 2000 in the Fair Trading Tribunal, which is constituted under the Fair Trading Tribunal Act 1998. Under transitional provisions, that proceeding continued before the Consumer, Trader and Tenancy Tribunal which is constituted under the Consumer, Trader and Tenancy Tribunal Act 2001.

5 The second proceeding (HB02/27309) was commenced by application filed in the Consumer, Trader and Tenancy Tribunal on 18 June 2002.

6 In this judgment, I will refer to both tribunals as “the Tribunal”.

7 In the first application, Mrs Anthony, joined Chris Savage Pty Limited as respondent, claiming a money order for $37,470 as compensation for alleged non-performance by the respondent of a contract made…

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Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Case
[2003] NSWSC 698
Decision Date

CaseChat Overview and Summary

In the matter of Anthony v Chris Savage Pty Ltd, the dispute centred around whether an order issued by the Consumer, Trader & Tenancy Tribunal (CTTT) was self-executing. The appellant, Anthony, argued that the respondent, Chris Savage Pty Ltd, had failed to comply with the terms of the order, while the respondent contended that the order was not self-executing and therefore did not require immediate action. The case was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the CTTT order was self-executing and, if so, whether the tribunal had the power to extend the time for compliance to avoid the operation of such an order. The court also had to consider whether the tribunal's failure to extend the time constituted an error of law. Furthermore, the court examined the circumstances in which an extension of time to appeal could be granted.

The court found that the CTTT order was indeed self-executing, meaning it required immediate compliance. However, the tribunal had the power to extend the time for compliance in appropriate circumstances. The court held that the tribunal had erred in law by not considering whether an extension of time should be granted. As a result, the court allowed the appeal and remitted the matter to the tribunal for reconsideration. The tribunal was directed to determine whether an extension of time to comply with the order should be granted and, if so, for what period.

Orders

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Background to the litigation

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