Egan v Egan - [2023] NSWCATCD 10

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Egan v Egan [2023] NSWCATCD 10
Hearing dates: 20 December 2022
Date of orders: 04 January 2023
Decision date: 04 January 2023
Jurisdiction: Consumer and Commercial Division
Before: R C Titterton OAM, Senior Member
Decision:
1. The applicant’s application to adjourn the proceedings and to file further evidence is refused.
2. The proceedings are dismissed.
3. If either party seeks a costs order other than the applicant pay the respondent’s costs of the proceedings, including the reserved costs of 19 December 2022, they should file submissions within 14 days of publication of these reasons, with the other party responding within a further 14 days. The Tribunal proposes to deal with any costs application on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions.

Catchwords:
BUILDING AND CONSTRUCTION – application to adjourn proceedings – application to file further evidence – application for summary dismissal – the guiding principle of the Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) – s 36, 55(1)(b)
Home Building Act 1989 (NSW) – 3, 18E, 48A, and cl 2 of Sch 1 and cl 2(3)(i) of Sch 1

Cases Cited:
Guthrie v Spence (2009) 78 NSWLR 225
Murray v Hall (1849) 7 CB 441
Wright v Gibbons (1949) 78 CLR 313
Guthrie v Australia and New Zealand Banking Group Ltd (1991) 23 NSWLR 672
Singh v Kaur Bal (No 2) (2014] WASCA 88
Ochudzawa v Lepagier; Lepagier v Ochudzawa [2022] NSWCATCD 57

Texts Cited:
Blackstone, Commentaries on the Laws of England, Vol 2
Butt, Land Law, Seventh Edition
Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832

Category: Procedural rulings
Parties: Applicant: Jeffrey Egan
Respondent: Natasha Egan
Representation:
Counsel:

Applicant: J Simpson
Respondent: M Short

Solicitors:
Applicant: EA Legal
Respondent: SLF Lawyers

File Number(s): HB 22/31746
Publication restriction: Nil

REASONS FOR DECISION

Introduction

By application filed 14 July 2022, the applicant seeks orders that the respondent pay him $50,000 for defective building work which the respondent supervised pursuant to an Owner Builder’s Permit (primary application).
The respondent is the former wife of the applicant. Until 11 November 2022, the parties owned the subject property as joint tenants.
The respondent seeks an order that the primary application be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that is, as being frivolous or vexatious or otherwise misconceived or lacking in substance.
The applicant opposes that application, asks that the application be adjourned for consideration at a final hearing, and that the applicant be granted leave to file additional evidence in support of his claim.
For the following reasons, I have decided to refuse the application for an adjournment, and to dismiss the primary application.

Primary Application

In his primary application, the applicant seeks an order that the respondent pay him $50,000. The stated…

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.

Continue reading Egan v Egan

Details

AGLC: Egan v Egan [2023] NSWCATCD 10
Case: [2023] NSWCATCD 10
Decision Date: 04 January 2023

CaseChat Overview and Summary

The case of Egan v Egan involved a dispute between the parties regarding building and construction matters. The matter was heard in the Civil and Administrative Tribunal (CAT) in New South Wales. The respondent sought summary dismissal of the applicant's claims and opposed the applicant's applications to adjourn the proceedings and to file further evidence. The legal issues before the Tribunal included whether the proceedings should be summarily dismissed and whether the applications to adjourn and to file further evidence should be granted.

The Tribunal considered the guiding principle of the Civil and Administrative Tribunal Act 2013 (NSW), which states that proceedings should be dealt with in a just, quick and cheap way. The Tribunal found that the respondent's applications for summary dismissal and against the adjournment and further evidence were well founded. The Tribunal noted that the applicant had not provided a satisfactory explanation for the delay in filing their evidence and that the application to adjourn was an attempt to avoid the consequences of their delay. The Tribunal also found that the applicant's claims were unlikely to succeed and that there was no sufficient evidence to support them.

Accordingly, the Tribunal dismissed the applicant's claims and refused their applications to adjourn and to file further evidence. The Tribunal noted that if either party sought a costs order, they should file submissions within 14 days of publication of these reasons, with the other party responding within a further 14 days. The Tribunal proposed to deal with any costs application on the papers and without a hearing, unless either party opposed that course and addressed the issue in their submissions. The Tribunal made an order that the applicant pay the respondent's costs of the proceedings, including the reserved costs of 19 December 2022.

Orders

Orders of the court

1. The applicant’s application to adjourn the proceedings and to file further evidence is refused.

2. The proceedings are dismissed.

3. If either party seeks a costs order other than the applicant pay the respondent’s costs of the proceedings, including the reserved costs of 19 December 2022, they should file submissions within 14 days of publication of these reasons, with the other party responding within a further 14 days. The Tribunal proposes to deal with any costs application on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions.

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:	Egan v Egan [2023] NSWCATCD 10
Hearing dates:	20 December 2022
Date of orders:	04 January 2023
Decision date:	04 January 2023
Jurisdiction:	Consumer and Commercial Division
Before:	R C Titterton OAM, Senior Member
Decision:	1. The applicant’s application to adjourn the proceedings and to file further evidence is refused. 2. The proceedings are dismissed. 3. If either party seeks a costs order other than the applicant pay the respondent’s costs of the proceedings, including the reserved costs of 19 December 2022, they should file submissions within 14 days of publication of these reasons, with the other party responding within a further 14 days. The Tribunal proposes to deal with any costs application on the papers and without a hearing. If either party opposes that course, they should address that issue in their submissions.
Catchwords:	BUILDING AND CONSTRUCTION – application to adjourn proceedings – application to file further evidence – application for summary dismissal – the guiding principle of the Civil and Administrative Tribunal Act 2013 (NSW)
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) – s 36, 55(1)(b) Home Building Act 1989 (NSW) – 3, 18E, 48A, and cl 2 of Sch 1 and cl 2(3)(i) of Sch 1
Cases Cited:	Guthrie v Spence (2009) 78 NSWLR 225 Murray v Hall (1849) 7 CB 441 Wright v Gibbons (1949) 78 CLR 313 Guthrie v Australia and New Zealand Banking Group Ltd (1991) 23 NSWLR 672 Singh v Kaur Bal (No 2) (2014] WASCA 88 Ochudzawa v Lepagier; Lepagier v Ochudzawa [2022] NSWCATCD 57
Texts Cited:	Blackstone, Commentaries on the Laws of England, Vol 2 Butt, Land Law, Seventh Edition Coke E, Commentary upon Littleton, Vol 1, 19th ed, London, 1832
Category:	Procedural rulings
Parties:	Applicant: Jeffrey Egan Respondent: Natasha Egan
Representation:	Counsel: Applicant: J Simpson Respondent: M Short Solicitors: Applicant: EA Legal Respondent: SLF Lawyers
File Number(s):	HB 22/31746
Publication restriction:	Nil