Blue Haven Pools and Spas Pty Ltd v Cunningham - [2011] NSWSC 1435

Supreme Court

New South Wales

Medium Neutral Citation: Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435
Hearing dates: 24 February 2011
Decision date: 25 November 2011
Jurisdiction: Common Law
Before: Adams J
Decision:

The decision of the Consumer, Trader and Tenancy Tribunal of 2 February 2010 in File No HB 09/58015 between Leanne Juliet Cunningham and Blue Haven Pools and Spas Pty Ltd is quashed.
The orders made pursuant to the said decision are vacated.
The matter is remitted to the Tribunal for hearing and determination according to law.
The defendant is to pay the plaintiff's costs of the summons.

Catchwords: ADMINISTRATIVE LAW - claim for prerogative relief - procedural fairness - failure to notify party of hearing - adverse order made in absence of party - Consumer, Trader and Tenancy Tribunal Act 2001, ss 25, 35 and 78 - Consumer, Trader and Tenancy Tribunal Regulation 2009 regs 30 and 80.
PROCEDURE - appeal - Uniform Civil Procedure Rules 2005, Part 50 - Consumer, Trader and Tenancy Tribunal Act 2001, ss 65 and 67 - definition of "appeal" under UCPR Part 50 -relief granted under Supreme Court Act 1970, s 69, - whether application for prerogative relief constitutes an appeal under Part 50 - Supreme Court without jurisdiction to entertain appeals from the Consumer, Trader and Tenancy Tribunal.
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Consumer, Trader and Tenancy Tribunal Regulation 2009
Supreme Court Act 1970
Interpretation Act 1987
Uniform Civil Procedure Rules 2005
Cases Cited: Ah Yick v Lehmert (1905) 2 CLR 593
Commonwealth v Brisbane Milling Co (1915) 21 CLR 559 at 576
Rugani v Director of Police (2005) 222 CLR 489
Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Kirk v Industrial Relations Commission (2010) 262 ALR 569
Craig v South Australia (1995) 184 CLR 163
Italiano v Carbone [2005] NSWCA 177
SZBEL v Minister for Immigration (2006) 228 CLR 152
Category: Interlocutory applications
Parties: Blue Haven Pools & Spas Pty Limited (Plaintiff)
Leanne Juliet Cunningham (First defendant)
Consumer Trader & Tenancy Tribunal (Second defendant)
Representation: M. Dulhunty (Plaintiff)
J.S. Emmett (First defendant)
Crown Solicitor (Second defendant)
Coyne Legal (Plaintiff)
Holman Webb Lawyers (First defendant)
Crown Solicitor (Second defendant)

File Number(s): 2010/365030

Judgment

Introduction

Blue Haven Pools and Spas Pty Ltd (Blue Haven), the plaintiff, brings proceedings by way of a further amended summons commencing an appeal under Part 50 of the Uniform Civil Procedure Rules 2005 filed in court on 24 February 2010 seeking ( inter alia ) orders quashing or setting aside the "decision of and orders made by the [NSW Consumer, Trader and Tenancy Tribunal] on 2 February 2010" and remitting the matter back to the Tribunal for rehearing. The dispute giving rise to the decision of the Tribunal, by which Blue Haven was ordered to pay Leanne Cunningham, the first defendant, the sum of $21,862.50, results from renovation work carried out by Blue Haven on a pool on Ms Cunningham's…

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: [2011] NSWSC 1435
Decision Date: 25 November 2011

CaseChat Overview and Summary

The respondents, Blue Haven Pools and Spas Pty Ltd, brought an appeal against the decision of the Consumer, Trader and Tenancy Tribunal (Tribunal) which had found that the appellant, Cunningham, had breached the Australian Consumer Law. The respondents contended that the Tribunal's decision was flawed as it failed to afford them procedural fairness by not notifying them of the hearing. Cunningham, in turn, argued that the appeal should be dismissed because it did not meet the requirements of an appeal under the Uniform Civil Procedure Rules 2005.

The court was required to determine whether the application for prerogative relief constituted an appeal under Part 50 of the Uniform Civil Procedure Rules 2005, and if the Supreme Court had jurisdiction to entertain appeals from the Tribunal. The court also needed to consider whether the Supreme Court had jurisdiction to hear the appeal and whether the appeal was validly brought.

The court held that the application for prerogative relief did not constitute an appeal under Part 50 of the Uniform Civil Procedure Rules 2005. The court found that the definition of "appeal" in the UCPR Part 50 only applied to appeals from decisions of the Tribunal. The Supreme Court did not have jurisdiction to hear appeals from the Tribunal, and therefore the appeal was invalid. The court further held that the Tribunal had acted outside its jurisdiction by making an adverse order against Cunningham without providing notice of the hearing, and that this failure to afford procedural fairness was a jurisdictional error.

The appeal was dismissed, and the decision of the Tribunal was affirmed. The court found that the Tribunal had acted within its jurisdiction, and that the failure to provide notice of the hearing did not constitute a jurisdictional error. The court held that the appeal was invalid, and that the Supreme Court did not have jurisdiction to hear it.

Orders