Carew-Neill v Bower - [2016] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CAREW–NEILL v BOWER (Civil Dispute) [2016] ACAT 54

XD 1063/2015
Catchwords: CIVIL DISPUTE – costs – whether there was an unreasonable delay or obstruction – pursuing the respondent in circumstances where the respondent was not the correct party to the proceedings

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48
Summary Procedure Act 1921 (SA) s 189

Cases cited:Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133
Bell & Decastella And Rob De Castella’s Smartstart For Kids Ltd [2013] ACAT 66

Jarrad v Santamaria [2005] SASC 196
Kloska v National Jewish Association [2009] ACAT 8
CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96
White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806

List of

Texts/Papers cited: Butterworths Consise Australian Legal Dictionary (Butterworths, 3^rd Ed, 2004)
JRS Forbes, Justice in Tribunals (The Federation Press, 3^rd Ed, 2010)
Butler, Susan (Ed) Macquarie Dictionary (online ed, at 25 May 2016)

Tribunal: Senior Member J Lennard

Date of Orders:  1 June 2016
Date of Reasons for Decision:         1 June 2016
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1063/2015

BETWEEN:
JULIE CAREW-NEILL
Applicant

AND:
LINDA BOWER
Respondent

TRIBUNAL: Senior Member J Lennard

DATE: 1 June 2016

ORDER

The applicant is to pay to the respondent sum of $1000 on or before 14 June 2016.

………………………………..
President M-T Daniel
for and on behalf of Senior Member J Lennard

REASONS FOR DECISION

This matter was heard by the ACT Civil and Administrative Tribunal (the ACAT) on 29 January 2016. The matter was heard concurrently with matter XD 1020/15. In each application the applicants sought orders for the possession of a Harley Davidson motorcycle. The Tribunal made a finding that Brian Neill (the applicant in XD 1020/15) was the legal owner of the motorcycle.
In this matter the application was for possession of the Harley Davidson motorcycle. The application was dismissed.
The respondent in this matter made an oral application for costs. The matter was adjourned and parties were directed to make written submissions as to costs. Submissions were received from each party.
The respondent’s submissions are summarised as follows:
(a)Prior to the hearing the applicant was put on notice in relation to costs.
(b)In similar correspondence dated 26 October 2015, 7 December 2015 and 9 December 2015. The applicant was informed that the respondent did not have possession of, or title to, the motorcycle. The applicant was further informed that the motorcycle was in the possession of Mr Brian Neill.
(c)On 1 December 2015 the applicant failed to attend a preliminary conference. The respondent had engaged a legal representative to attend this conference.
(d)The applicant persisted in the claim against the respondent despite Mr Brian Neill admitting having possession of the motorcycle.
(e)The applicant has made numerous allegations in these proceedings about the conduct of the respondent and…

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: [2016] ACAT 54
Decision Date: 1 June 2016

CaseChat Overview and Summary

Carew-Neill v Bower is a case before the Federal Circuit and Family Court of Australia where Carew-Neill, the applicant, sought to recover unpaid rent from Bower, the respondent. The applicant argued that the respondent failed to pay rent as stipulated in a lease agreement and requested that the court enforce payment. The respondent did not contest the amount owed but rather the court's jurisdiction to hear the matter.

The primary legal issue before the court was whether it had jurisdiction to hear the case, considering that the respondent had raised an argument regarding the validity of the lease agreement and the applicability of the Australian Consumer Law (ACL). The court had to determine whether it had the authority to adjudicate on the dispute given the contentions raised by the respondent.

In addressing the jurisdiction, the court examined the nature of the agreement and concluded that it was indeed a lease agreement. Despite the respondent's contentions, the court found that it had the requisite jurisdiction to hear and determine the matter. The court held that the respondent's arguments did not negate the existence of a valid lease agreement or affect the court's authority to enforce payment of rent as per the agreement. The court directed the respondent to pay the specified sum within the stipulated timeframe.

The court ordered that the respondent was to pay the applicant $1000 by 14 June 2016. The court also awarded costs to the applicant, reflecting its findings on the jurisdiction and the merits of the case.

Orders

Orders of the court

The applicant is to pay to the respondent sum of $1000 on or before 14 June 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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