Chand v Azurra Pty Ltd (in liquidation) - [2011] NSWCA 227

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chand v Azurra Pty Ltd (in liquidation) [2011] NSWCA 227
Hearing dates: 12 July 2011
Decision date: 05 August 2011
Before: Hodgson JA at [1]
Basten JA at [2]
Macfarlan JA at [7]
Decision:
The applicants' summons 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:
ADMINISTRATIVE LAW - judicial review - procedural fairness - whether Consumer, Trader and Tenancy Tribunal denied applicants procedural fairness in giving no weight to expert report on basis of non-compliance with Makita v Sprowles principles - whether Tribunal denied applicants procedural fairness in excluding one applicant from hearing room while her husband was being cross-examined - whether excluded applicant was denied a reasonable opportunity to be present and participate in the proceedings on second hearing day

ADMINISTRATIVE LAW - judicial review - relief sought in the nature of certiorari - whether Consumer, Trader and Tenancy Tribunal made factual findings in the absence of any evidence to support those findings
EVIDENCE - principle in Jones v Dunkel - whether failure to call available party eyewitness relevant to assessment of evidence of another party eyewitness who was called
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Evidence Act 1995
Supreme Court Act 1970
Cases Cited: Chand v Lifestyle Homes NSW* Pty Ltd [2011] NSWCA 129
CJD Equipment Pty Limited v A&C Constructions Pty Limited [2011] NSWCA 188
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Manly Council v Byrne [2004] NSWCA 123
Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Wenkart v Pitman (1998) 46 NSWLR 502
Texts Cited: Wigmore on Evidence (Chadbourn Rev 1979), Vol 2
Category: Principal judgment
Parties: Ajay Chand (First Applicant)
Shashi Chand (Second Applicant)
Azurra Pty Ltd (in liquidation) (First Respondent)
Lifestyle Homes NSW* Pty Ltd (Second Respondent)
Consumer, Trader and Tenancy Tribunal (Third Respondent)
District Court of New South Wales (Fourth Respondent)
Representation: Counsel:
F Corsaro SC (Applicants)
M Painter/T Glover (Second Respondent)
Solicitors:
Adams & Partners Lawyers (Second Respondent)
I V Knight, Crown Solicitor (Third and Fourth Respondents)

File Number(s): CA 2010/140345

Judgment

HODGSON JA : I agree with Macfarlan…

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] NSWCA 227
Decision Date: 05 August 2011

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Chand, sought judicial review of decisions made by the Consumer, Trader and Tenancy Tribunal (the Tribunal) concerning a dispute with Azurra Pty Ltd (in liquidation). The applicants contended that the Tribunal denied them procedural fairness in its conduct of the proceedings. The matter came before the Court of Appeal of New South Wales, constituted by Hodgson, Basten and Macfarlan JJA.

The central legal issues before the Court of Appeal were whether the Tribunal had denied the applicants procedural fairness by: (a) failing to give weight to an expert report on the basis that it did not comply with the principles established in *Makita (Australia) Pty Ltd v Sprowles*; (b) excluding Mrs. Chand from the hearing room while her husband was being cross-examined, thereby denying her a reasonable opportunity to be present and participate in the proceedings on the second day of the hearing; and (c) making factual findings in the absence of supporting evidence. The Court also considered the application of the principle in *Jones v Dunkel* regarding the failure to call an available party eyewitness.

The Court of Appeal found that the Tribunal was entitled to disregard the expert report if it did not comply with the *Makita* principles, and that its decision to do so did not amount to a denial of procedural fairness. Furthermore, the Court held that excluding Mrs. Chand from the hearing room during her husband's cross-examination, while regrettable, did not constitute a denial of procedural fairness as she was still able to participate in the proceedings and was not prejudiced by her temporary absence. The Court also determined that the Tribunal's factual findings were supported by evidence, and that the *Jones v Dunkel* principle was not applicable in the circumstances.

The applicants' summons was dismissed with costs.

Orders

Orders of the court

The applicants' summons 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chand v Azurra Pty Ltd (in liquidation) [2011] NSWCA 227
Hearing dates:	12 July 2011
Decision date:	05 August 2011
Before:	Hodgson JA at [1] Basten JA at [2] Macfarlan JA at [7]
Decision:	The applicants' summons 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:	ADMINISTRATIVE LAW - judicial review - procedural fairness - whether Consumer, Trader and Tenancy Tribunal denied applicants procedural fairness in giving no weight to expert report on basis of non-compliance with Makita v Sprowles principles - whether Tribunal denied applicants procedural fairness in excluding one applicant from hearing room while her husband was being cross-examined - whether excluded applicant was denied a reasonable opportunity to be present and participate in the proceedings on second hearing day ADMINISTRATIVE LAW - judicial review - relief sought in the nature of certiorari - whether Consumer, Trader and Tenancy Tribunal made factual findings in the absence of any evidence to support those findings EVIDENCE - principle in Jones v Dunkel - whether failure to call available party eyewitness relevant to assessment of evidence of another party eyewitness who was called
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 Evidence Act 1995 Supreme Court Act 1970
Cases Cited:	Chand v Lifestyle Homes NSW* Pty Ltd [2011] NSWCA 129 CJD Equipment Pty Limited v A&C Constructions Pty Limited [2011] NSWCA 188 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Manly Council v Byrne [2004] NSWCA 123 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Wenkart v Pitman (1998) 46 NSWLR 502
Texts Cited:	Wigmore on Evidence (Chadbourn Rev 1979), Vol 2
Category:	Principal judgment
Parties:	Ajay Chand (First Applicant) Shashi Chand (Second Applicant) Azurra Pty Ltd (in liquidation) (First Respondent) Lifestyle Homes NSW* Pty Ltd (Second Respondent) Consumer, Trader and Tenancy Tribunal (Third Respondent) District Court of New South Wales (Fourth Respondent)
Representation:	Counsel: F Corsaro SC (Applicants) M Painter/T Glover (Second Respondent) Solicitors: Adams & Partners Lawyers (Second Respondent) I V Knight, Crown Solicitor (Third and Fourth Respondents)
File Number(s):	CA 2010/140345