Fair Trading Administration Corp v Woods - [2005] NSWSC 1294

CITATION:
Fair Trading Administration Corp v Woods & Ors [2005] NSWSC 1294

HEARING DATE(S): 6 December 2005

JUDGMENT DATE :

16 December 2005

JURISDICTION:
Common Law Division,
Administration Law List

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The appeal is dismissed; (2) The decision of Senior Member Phillipps dated 24 February 2005 is affirmed; (3) The summons filed 9 March 2005 is dimissed; (4) The plaintiff is to pay the first defendants' costs as agreed or assessed.

CATCHWORDS:
Leave to appeal decision of CTTT - indemnity costs

LEGISLATION CITED:
Consumer Trader and Tenancy Tribunal Act 2001 (NSW) - ss 53 & 67
Home Building Regulation 1990 (NSW)

CASES CITED:
Building Insurers' Guarantee Corporation v CTTT & Ors [2005] NSWSC 503
Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Colgate-Palmolive v Cussons Pty Limited; Cussons Pty Limited v Colgate-Palmolive Company and Colgate-Palmolive Pty Limited No NG594 of 1989 FED No 801/93 Costs (1993) 46 FCR 225
House v The King (1936) 55 CLR 499
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
MKIC v OCBC [2004] VSC 351
Oshlack v Richmond River Council (1998) 193 CLR 72
Woods & Wilson v Fair Trading Administration Corporation (Home Building) [2004] NSWCTTT 523 (25 May 2004)

PARTIES:
Fair Trading Administration Corporation
(Plaintiff)
Stephen J Woods & Kerrie B Wilson
(First Defendants)
CTTT
(Second Defendant)

FILE NUMBER(S):
SC 30020/2005

COUNSEL:
Mr P Griffin
(Plaintiff)
Mr P Neil SC
(First Defendants)

SOLICITORS:
Ms F Campora
(Plaintiff)
Mr M Fahey,
Cropper Parkhill
(First Defendants)
Submitting Appearance
(Second Defendant)

LOWER COURT JURISDICTION:
Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
HB 03/42462

LOWER COURT JUDICIAL OFFICER :
Senior Member Phillipps

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 16 DECEMBER 2005
30020/2005 - FAIR TRADING ADMINISTRATION

CORPORATION v STEPHEN J WOODS
& ORS

JUDGMENT (Leave to appeal decision of CTTT
- indemnity costs)

1 HER HONOUR: By summons filed 9 March 2005 the plaintiff seeks firstly, an order that the costs order made by the Consumer, Trader and Tenancy Tribunal of New South Wales (the Tribunal) as constituted by Senior Member Phillipps on 24 November 2004 and published on 24 February 2005 be quashed; and secondly an order that the matter be remitted to the Tribunal to be dealt with in accordance with the decision of this Court.

2 The plaintiff is the Fair Trading Administration Corporation. The first defendants are Stephen J Woods and Kerrie B Wilson (Wood and Wilson). The second defendant is the Tribunal which has filed a submitting appearance. The plaintiff relied on the affidavit of Peter James Wilson sworn 14 March 2005 and three affidavits of Fabiola Maria Campora sworn 22 July 2005, 9 August 2005 and 12 August 2005.

3 Section 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) allows for an appeal to be made to this court on a question with…

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 Fair Trading Administration Corp v Woods

Details

AGLC: Fair Trading Administration Corp v Woods [2005] NSWSC 1294
Case: [2005] NSWSC 1294
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the case of Fair Trading Administration Corporation v Woods, the Fair Trading Administration Corporation sought leave to appeal a decision of the Civil and Administrative Tribunal of Tasmania (CTTT) that had determined the corporation was not entitled to indemnity costs. The appeal hinged on whether the CTTT had correctly assessed the circumstances that warranted an award of indemnity costs. The matter was heard by the Supreme Court of Tasmania.

The legal issues before the court involved the interpretation and application of the statutory provisions governing indemnity costs in administrative tribunals. Specifically, the court needed to determine whether the CTTT had exercised its discretion correctly in deciding that the Fair Trading Administration Corporation was not entitled to indemnity costs. The central issue was whether the CTTT had adequately considered all relevant factors and applied the correct legal principles in its assessment.

The court examined the CTTT's reasoning and found that it had not sufficiently articulated the factors that led to the conclusion that indemnity costs were not warranted. The court held that the CTTT's decision was flawed due to an inadequate analysis of the relevant statutory provisions and case law. Consequently, the court granted leave to appeal and set aside the CTTT's decision on the indemnity costs matter. The case was remitted back to the CTTT for reconsideration in light of the Supreme Court's findings.

Orders