Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158 Hearing dates: 22 February 2021 Date of orders: 24 February 2021 Decision date: 24 February 2021 Jurisdiction: Consumer and Commercial Division Before: D G Charles, Senior Member Decision: 1. The Tribunal declines to deal with applications HB 19/57318 and HB 20/06029 as it has no jurisdiction to determine these proceedings.
2. In the event that a party makes application to an authorised court for leave under s 34B of the Civil and Administrative Tribunal Act 2013 NSW, the Divisional Registrar is to provide such documents from file nos HB 19/57318 and HB 20/06029 as the authorised court may require in order to determine the party’s leave application to the authorised court.
3. If any party seeks an order for costs leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 28 days of the date of these orders.
4. Leave is granted to the other party to file and serve a short written submission in reply (no more than 5 A4 size pages) within a further period of 28 days.
5. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.
Catchwords: CONSTITUTIONAL LAW — Home building claims — Misleading or deceptive conduct — Federal matter — Whether colourable and lacking bona fide merits — Jurisdiction of the Tribunal to determine — Part 3A of the Civil and Administrative Tribunal Act, 2013 — Appropriate orders
Legislation Cited: Competition and Consumer Act 2010 (Cth)
Australian Consumer Law (Cth)
Civil and Administrative Tribunal Act 2013 (NSW)
Fair Trading Act 1987 (NSW)
Australian Consumer Law (NSW)
Commonwealth of Australia Constitution Act
Judiciary Act 1903 (Cth)
Cases Cited: Old UGC v Industrial Relations Commission in Court Session [2006] HCA 24
Attorney General for New South Wales v Gatsby (2018) NSWCA 254
Rana v Google Inc [2017] FCAFC 17
Burgundy Royale Investments Pty Ltd (Receivers and Managers Appointed) v Westpac Banking Corporation [1987] FCA 686
Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275
Re Wakim [1999] HCA 27; 198 CLR 511
Dalton v Qantas Airways Ltd [2020] NSWCATCD 2
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Texts Cited: Nil
Category: Principal judgment Parties: David A Gleeson (Applicant/Cross-respondent)
Shane Andrew Cavers, William Ronald Cavers and Melissa Cavers (Respondents/Cross-applicants)Representation: Counsel:
Solicitors:
D O’Connor (Applicant/Cross-respondent)
H Sonmez (Respondents/Cross-applicants)
Nikola Velcic & Associates (Applicant/Cross-respondent)
A Lloyd Legal (Respondents/Cross-applicants)
File Number(s): HB 19/57318; HB 20/06029 Publication restriction: Nil
REASONS FOR DECISION
The Parties and the Proceedings
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The proceedings involve disputes in respect of residential building work at Carlingford…
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- AGLC
- Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158
- Case
- [2021] NSWCATCD 158
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal had jurisdiction to determine the merits of the claims and if the claims were colourable and lacked bona fide merits. Gleeson argued that the Tribunal had no jurisdiction as the claims were federal matters. Cavers countered that the Tribunal had the requisite authority and that Gleeson's claims were without merit. The court had to interpret the relevant sections of the Civil and Administrative Tribunal Act 2013 NSW and determine if the Tribunal could exercise jurisdiction over the matter.
The Tribunal concluded that it did not have jurisdiction to determine the proceedings as they involved federal matters concerning home building claims and misleading or deceptive conduct, which were not within its remit. The court found that Gleeson's claims were federal in nature and thus beyond the Tribunal's authority. Consequently, the Tribunal declined to deal with the applications and directed that any application for leave to an authorised court should be supported by relevant documents from the Tribunal's file. The court also outlined procedures for applications for costs, including submissions and the possibility of deciding costs on the papers without a hearing.
The orders of the Tribunal included declining jurisdiction over the applications, directing the provision of documents for any leave application to an authorised court, and setting out the process for applications for costs. Gleeson and Cavers were given leave to file written submissions on the issue of costs, with specific page limits and timeframes. The Tribunal also considered the possibility of deciding the costs issue on the papers, without a hearing, under section 50(2) of the Civil and Administrative Tribunal Act 2013 NSW.
Orders
Orders of the court
1. The Tribunal declines to deal with applications HB 19/57318 and HB 20/06029 as it has no jurisdiction to determine these proceedings.
2. In the event that a party makes application to an authorised court for leave under s 34B of the Civil and Administrative Tribunal Act 2013 NSW, the Divisional Registrar is to provide such documents from file nos HB 19/57318 and HB 20/06029 as the authorised court may require in order to determine the party’s leave application to the authorised court.
3. If any party seeks an order for costs leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 28 days of the date of these orders.
4. Leave is granted to the other party to file and serve a short written submission in reply (no more than 5 A4 size pages) within a further period of 28 days.
5. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.
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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