Boensch v Donovan Electrical Services Pty Ltd

[2014] NSWCA 453

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Boensch v Donovan Electrical Services Pty Ltd [2014] NSWCA 453

Hearing dates:

18 December 2014

Decision date:

18 December 2014

Before:

Macfarlan JA
Sackville AJA

Decision:

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal - decision below refusing to grant judicial relief in respect of decisions of Consumer Trader and Tenancy Tribunal - application refused - no issue of principle

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68

Category:

Procedural and other rulings

Parties:

Franz Boensch (Applicant)
Donovan Electrical Services Pty Ltd (First Respondent)
Consumer Trader and Tenancy Tribunal (Second Respondent)

Representation:

Counsel:
A Kumar (Applicant)
L Fermanis (First Respondent)
Solicitors:
Applicant (self-represented)
NECA Legal Pty Ltd (First Respondent)

File Number(s):

CA 2014/308343

 Decision under appeal 

Jurisdiction:

9111

Citation:

Boensch v Donovan Electrical Services Pty Ltd [2014] NSWSC 1297

Date of Decision:

2014-09-24 00:00:00

Before:

Campbell J

File Number(s):

SC 2013/305926

Judgment

1. THE COURT: Mr Boensch sought leave to appeal to this Court from the judgment dated 24 September 2014 of Campbell J sitting in the Common Law Division of the Supreme Court ([2014] NSWSC 1297). We dismissed that application on 18 December 2014. These are our reasons for doing so.

1. Before Campbell J, Mr Boensch sought judicial review of three decisions of the then existing Consumer Trader and Tenancy Tribunal made under the now repealed Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Pursuant to the first decision (of 30 July 2013), the Tribunal ordered that Mr Boensch pay $6,203.25 to the present respondent, Donovan Electrical Services Pty Ltd. The second decision was one of a Tribunal member refusing an application under s 68(1) of the Act for a rehearing of the proceeding. The third was the refusal by the Chairperson of the Tribunal of a second rehearing application (under s 68(9A) of the Act). The circumstances in which these decisions were made and the bases of Mr Boensch's application for judicial review by the Supreme Court are set out fully in the comprehensive judgment of Campbell J.

1. Campbell J gave cogent reasons for rejecting Mr Boensch's application for judicial review and Mr Boensch did not demonstrate to us that he had any reasonable prospect of success on appeal from his Honour's decision. In essence the position was that whilst Mr Boensch had medical reasons for not attending the hearing in the Tribunal on 30 July 2013, he did not provide on his subsequent applications to the Tribunal any reason why he did not notify it that he would be unable to attend, nor any reason why he did not seek an adjournment. It was only before Campbell J that he asserted that these oversights resulted from his preoccupation with his medical condition.

1. As Mr Boensch had been notified of the hearing on 30 July 2013, it was open to the Tribunal to deal with any application made to it on that day, including by allowing Donovan Electrical Services to amend to claim a quantum meruit. This amendment did not change the substance of its case against Mr Boensch. Moreover, even now, the nature of the defence that Mr Boensch apparently wanted to mount in the Tribunal remains unclear. In those circumstances, the Court cannot be satisfied that he had an arguable defence to the claim against him.

1. In these circumstances, it was not appropriate for this Court to grant leave to appeal. The case involved about $6,000, which is far below the threshold of $100,000 beyond which an appeal as of right lies. There have already been two review applications in the Tribunal and a contested hearing before Campbell J in the Supreme Court. Justice did not require a grant of leave to appeal to Mr Boensch.

**********

Decision last updated: 19 December 2014