Anthony v Chris Savage Pty Ltd - [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…

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.

Continue reading Anthony v Chris Savage Pty Ltd

Details

AGLC: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Case: [2003] NSWSC 698
Decision Date: 1 August 2003

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