Allsop P at [1], Giles JA at [59], Basten JA at [144]
Decision:
(1) Amended summons filed on 21 December 2010 dismissed.
(2) Applicants pay the respondent's costs including the costs of the summons seeking leave to appeal.
[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 - Jurisdiction of District Court on appeal from Consumer Trader and Tenancy Tribunal - claim in the Tribunal against three defendants as parties to a contract - order against one defendant only - appeal to the District Court under s 67(1) Consumer Trader and Tenancy Tribunal Act 2001 (NSW) - District Court found that the proceedings in Tribunal had been on the basis that all three defendants were parties to contract - whether the Tribunal had decided a question with respect to a matter of law - (per Allsop P, Giles JA) there was an implicit decision that the Tribunal had fully exercised its jurisdiction - this was a decision on a question with respect to a matter of law - (per Basten JA) there had been no question in Tribunal as to disparate liability of defendants - there was no decision of a question with respect to a matter of law - District Court made an order against all three defendants - whether the District Court exceeded its jurisdiction in finding that all three defendants were parties to contract - (per Allsop P, Giles JA; Basten JA not considering) the District Court engaged in fact-finding beyond its jurisdiction - but the fact-finding was not material to the order it made. WORDS AND PHRASES - "decision", "question": Consumer Trader and Tenancy Tribunal Act 2001, s 67(1).
Legislation Cited:
Consumer Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW)
[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
AGLC
Edyp v Brazbuild Pty Ltd [2011] NSWCA 218
Case
[2011] NSWCA 218
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the District Court of New South Wales from an order made by the Consumer Trader and Tenancy Tribunal. The original proceedings in the Tribunal were brought by the respondent against three defendants, alleging they were parties to a contract. The Tribunal made an order against only one of the defendants. The respondent appealed this decision to the District Court under section 67(1) of the *Consumer Trader and Tenancy Tribunal Act 2001* (NSW).
The primary legal issue before the Court of Appeal was whether the District Court had jurisdiction to hear the appeal. This turned on whether the Tribunal's decision involved a "question with respect to a matter of law" as required by section 67(1) of the Act. A further issue was whether the District Court, in its appeal, had exceeded its jurisdiction by making an order against all three defendants, finding they were all parties to the contract.
The Court of Appeal, comprising Allsop P, Giles JA, and Basten JA, delivered divided reasons. Allsop P and Giles JA found that the Tribunal's decision, by making an order against only one defendant, implicitly involved a decision that it had fully exercised its jurisdiction. They considered this to be a decision on a question of law, thus conferring jurisdiction on the District Court. Basten JA, however, held that there had been no question before the Tribunal regarding the disparate liability of the defendants, and therefore no decision on a question of law. Regarding the District Court's order against all three defendants, Allsop P and Giles JA concluded that the District Court had engaged in fact-finding beyond its appellate jurisdiction, although they noted this was not material to the order it ultimately made.
The Court of Appeal dismissed the amended summons, with the applicants ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Amended summons filed on 21 December 2010 dismissed.
(2) Applicants pay the respondent's costs including the costs of the summons seeking leave to appeal.
[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.]