Atkinson v CTTT - [2010] NSWSC 426

CITATION: Atkinson v CTTT [2010] NSWSC 426

HEARING DATE(S): 4 May 2010

JUDGMENT DATE :
11 May 2010

JUDGMENT OF: Smart AJ

DECISION: Summons dismissed.
Plaintiffs to pay the costs of the Defendants of the Summons.

CATCHWORDS: Proceedings before CTTT - Difficulties in serving application on plaintiffs (respondents in CTTT) - Chairperson directs substituted service on permissible basis - Proceedings would in all reasonable probability come to notice of plaintiffs - Proceedings did come to notice of plaintiffs who did not appear at CTTT hearing - No reasonably arguable defence to claims made shown as to liability or damages - Relief refused on both grounds

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001

CATEGORY: Principal judgment

CASES CITED: Watt v Barnett & Ors 1878 3QB 183

PARTIES: Lisa Atkinson (First Plaintiff)
Clifford Atkinson (Second Plaintiff)
CTTT (First Defendant)
Cameron Crowley (Second Defendant)
Eleanor Crowley (Third Defendant)

FILE NUMBER(S): SC 2009/298140

COUNSEL: T Ower (Plaintiffs)
S Goldstein (2nd & 3rd Defendants)

SOLICITORS: GV Pashalis (Plaintiffs)
IV Knight (CTTT - submitting)
AJ Law & Co (2nd & 3rd Defendants)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Smart AJ

Tuesday 11 May 2010

2009/298140 Lisa and Clifford Atkinson v The Consumer, Trader and Tenancy Tribunal, Cameron and Eleanor Crowley
JUDGMENT

1 The plaintiffs, Mr and Mrs Atkinson, seek an order in the nature of certiorari to set aside the decision and order of the Consumer, Trader and Tenancy Tribunal (“CTTT”) dated 9 June 2009 which ordered the plaintiffs to pay Mr and Mrs Crowley $42,700.00 on or before 23 June 2009. The CTTT has filed a submitting appearance.

2 The plaintiffs contend that they were denied natural justice and procedural fairness in that they were unaware of the proceedings brought by Mr and Mrs Crowley in the CTTT. The plaintiffs submit that, both at common law and pursuant to s 35 of the CTTT Act 2001, they should have been given the opportunity to adduce evidence and make submissions in defence of the claim.

3 Central to the proceedings was a direction or order for substituted service made by the Chairperson of the CTTT on 30 January 2009 pursuant to cl 46(6) of CTTT Regulation 2002 in these terms:

4 The plaintiffs challenged this direction on the basis that they and Quaestor were different entities, had no sufficient connection and the method of substituted service adopted was unlikely to bring the proceedings to their notice.

5 In July 2006 the Crowleys purchased a property in Castle Cove from the plaintiffs for nearly $1.5 million. The property had been recently renovated. Substantial defects appeared.

6 About 23 September 2004 the plaintiffs…

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 Atkinson v CTTT

Details

AGLC: Atkinson v CTTT [2010] NSWSC 426
Case: [2010] NSWSC 426
Decision Date: 11 May 2010

CaseChat Overview and Summary

Atkinson v CTTT involved the Chairperson of the Civil and Administrative Tribunal of New South Wales (CTTT) and the respondent, Atkinson. The dispute centred around difficulties encountered in serving the application on Atkinson, who was the plaintiff in the tribunal proceedings. The central issue was whether the tribunal was justified in allowing substituted service of the application and whether Atkinson's failure to appear at the hearing warranted the dismissal of his claims. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court had to address were whether the tribunal had the authority to order substituted service under the circumstances and whether Atkinson's non-appearance at the hearing justified the refusal of relief. The court needed to determine if the substituted service was permissible and whether Atkinson's failure to appear at the hearing was a valid reason for dismissing his claims. The court also had to consider if there was a reasonably arguable defence to the claims made by the applicant.

In its decision, the court found that the substituted service was permissible because the tribunal had reasonable grounds to believe that Atkinson would not be served through conventional means. The court also held that Atkinson's non-appearance at the hearing did not automatically bar his claims, but it did highlight that the proceedings had come to his attention. The court determined that Atkinson had failed to demonstrate a reasonably arguable defence to the claims made against him, both in terms of liability and damages. Consequently, the court refused relief on these grounds. The orders of the tribunal were affirmed, dismissing Atkinson's claims.

Orders