Darin v Olzomer

Case [2012] NSWCA 60


Court of Appeal

New South Wales

Case Title: Darin v Olzomer
Medium Neutral Citation: [2012] NSWCA 60
Hearing Date(s): 26 March 2012
Decision Date: 26 March 2012
Jurisdiction:
Before:

Basten JA at 1; 
Meagher JA at 40; 
Sackville AJA at 41

Decision:

The following orders were made on 26 March 2012:

(1) Dismiss the application.

(2) Order the applicants to pay the costs of the first respondent in this Court.

[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 - error of law on the face of the record - whether appropriate for review of appellate court's decision take the form of a rehearing of the appeal - no evidence - need to identify factual issues in play before the decision-maker 

ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal appealed - failure to make findings of fact essential to an award - whether error sufficient to set aside decision - whether notice of contention could support such a decision on appeal with respect to a matter of law

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
Home Building Act 1989 (NSW), ss 7, 10
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Liebe v Molloy [1906] HCA 67; 4 CLR 347
Olzomer v Darin (Home Building) [2010] NSWCTTT 518
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Texts Cited:
Category: Principal judgment
Parties:

John Darin - First Applicant
Valda Darin - Second Applicant
Richard Anthony Olzomer - First Respondent
District Court of NSW - Second Respondent

Representation
- Counsel:

Counsel:

M R Gracie/D A Neggo - Applicants
F P Hicks - First Respondent
Submitting Appearance - Second Respondent

- Solicitors:

Solicitors:

Spinks Eagle Lawyers - Applicants
Sparke Helmore Lawyers - First Respondent
I V Knight, Crown Solicitor - Second Respondent

File number(s):

CA 2011/253094

Decision Under Appeal
- Court / Tribunal: District Court
- Before: Johnstone DCJ
- Date of Decision:
- Citation: Darin v Olzomer [2011] NSWDC 51
- Court File Number(s) DC 2010/414921
Publication Restriction:

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2006 the applicants ('the owners') engaged the respondent ('the builder') to construct a residential building. In May 2006 the owners approved a variation to the plans with the effect that the building would be built as a "split-level" building ('the split-level variation'). The builder advised the owners that the variation would involve…

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Details
AGLC
Darin v Olzomer [2012] NSWCA 60
Case
[2012] NSWCA 60
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by an appellate court concerning an appeal from the Consumer, Trader and Tenancy Tribunal. The applicants sought to challenge the appellate court's determination, alleging an error of law on the face of the record.

The primary legal issues before the Court of Appeal were whether it was appropriate for the judicial review of the appellate court's decision to take the form of a rehearing of the original appeal, and whether the appellate court had erred in law by failing to make findings of fact essential to the award made by the Tribunal. The Court also considered whether a notice of contention could support such a decision on appeal with respect to a matter of law.

The Court of Appeal reasoned that judicial review of an appellate court's decision should not involve a rehearing of the appeal itself. It emphasised the need to identify the specific factual issues that were before the original decision-maker. The Court found that the alleged failure to make findings of fact was not a sufficient error to set aside the appellate court's decision, particularly in the context of the available procedural mechanisms for challenging such decisions.

The application for judicial review was dismissed, and the applicants were ordered to pay the costs of the first respondent.

Orders

Orders of the court

The following orders were made on 26 March 2012:

(1) Dismiss the application.

(2) Order the applicants to pay the costs of the first respondent in this Court.

[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

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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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