Crystal Pools Pty Limited v Miller

District Court

New South Wales

Medium Neutral Citation:

Crystal Pools Pty Limited v Miller [2014] NSWDC 127

Hearing dates:

30 May 2014

Decision date:

30 May 2014

Before:

Neilson DCJ

Decision:

Leave to appeal refused

Appeal dismissed

Catchwords:

APPEAL - Leave to appeal - Grounds of appeal lacked specificity - Grounds failed to satisfy UCPR 50.4(2) - Proposed pleading inadequate to ground jurisdiction to deal with error of law

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW)
Uniform Civil Procedures Rules 2005 (NSW)

Cases Cited:

Edyp v Brazbuild Pty Ltd [2011] NSWCA 218

Category:

Principal judgment

Parties:

Crystal Pools Pty Limited
Kara Miller

Representation:

Solicitors
Worthington & Reading Lawyers (Plaintiff)
Picone & co (Defendant)
Counsel
Mr Webb QC (Plaintiff)
Mr Bland (Plaintiff)
Mr Miller SC (Defendant)
Mr To (Defendant)

File Number(s):

2014/15693

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Crystal Pools Limited, seeks leave to appeal from a decision of the Consumer, Trader and Tenancy Tribunal made on 21 November 2013. The plaintiff seeks leave because the summons commencing the appeal was filed out of time. It was filed on 17 January 2014. The relief claimed is that the order of Senior Member Meadows, formerly of the CTTT, made on 21 November 2013 in matter HB 12/39507 be set aside and that the plaintiff be awarded its costs of those proceedings. It also seeks an order for indemnity costs and costs of the current appeal.

1. The originating summons contains only one ground of relief. It is this:

"The senior member erred in respect to the application of s 53 of the Consumer, Trader and Tenancy Tribunal Act2001 and the effect on it by the Consumer, Trader and Tenancy Tribunal Regulations, particularly reg 20(4) and (5). Such errors are found at and are not limited to, paras 26, 32, 33, 34, 35, 36, 37 and 38 of the decision of the senior member".

1. The matter came before the Judicial Registrar on 17 February 2014. The Judicial Registrar made a number of orders. They were these:

"1. Direct that the plaintiff file any Amended Summons seeking an extension of time to appeal, and serve all evidence on which it proposes to rely for an extension of time by 3 March 2014.

2. Direct that the defendant serve any evidence on which it proposes to rely in relation to the plaintiff's application for an extension of time by 17 March 2014.

3. List the matter for further directions, and to set a hearing date for the application for extension on 25 March 2014.

4. Liberty to restore on two days' notice".

Pursuant to the leave sought, an amended summons was filed in the registry on 6 March 2014 and that did not vary in any way the sole ground of appeal relied upon.

1. The matter came before the Judicial Registrar again on 25 March as he had earlier ordered. Again, a further amended summons was filed in court on that…