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Gleeson v Cavers; Cavers v Gleeson

Gleeson v Cavers; Cavers v Gleeson

Case [2021] NSWCATCD 158 24 February 2021

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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:
D O’Connor (Applicant/Cross-respondent)
H Sonmez (Respondents/Cross-applicants)
Solicitors:
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

The proceedings involve disputes in respect of residential building work at Carlingford…

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 Gleeson v Cavers; Cavers v Gleeson

Details

AGLC: Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158
Case: [2021] NSWCATCD 158
Decision Date: 24 February 2021

CaseChat Overview and Summary

In Gleeson v Cavers; Cavers v Gleeson, the applicants, Gleeson and Cavers, were engaged in a dispute that required determination of jurisdiction and merits concerning home building claims, misleading or deceptive conduct, and the validity of their claims against each other. The matter was before the Civil and Administrative Tribunal of New South Wales, which had to decide whether it had the authority to hear the proceedings under Part 3A of the Civil and Administrative Tribunal Act 2013 NSW. Gleeson and Cavers also sought orders for costs and the dismissal of the other party's claims.

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

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.

Citations

AGLC Citation

Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158

Most Recent Citation

Blanch v Smith [2024] NSWCATAD 20

Cases citing this decision · 4 of 4 shown

McNally v Resolution Life Australasia Limited
[2024] NSWCATAD 388 Para 33

…e a matter which raises federal jurisdiction, the approach to the making of the order has not been uniform: in Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158, Eddings v Feros Care Limited [2023] NSWCATCD 126, Blanch v Smith [2024] NSWCATAD 20 and Dennis v Smith [2024] NSWCATAD 91, the applications were “declin…
Blanch v Smith
[2024] NSWCATAD 20 Para 33

…that it lacked jurisdiction, it should make an order declining to deal with the application as the course taken in Gleeson v Cavers:Cavers v Gleeson [2021] NSWCATCD 158.…
Eddings v Feros Care Limited
[2023] NSWCATCD 126 Para 37

…The question of what orders might be made when it is determined that an application involves a federal matter was considered in Gleeson v Cavers [2021] NSWCATCD 158 ( Gleeson ) which quoted and followed what was said in Dalton v Qantas Airways Ltd [2020] NSWCATCD 2 at [36]:…
Kaddex Pty Ltd v Twitter Australia Holdings Pty Ltd
[2023] NSWCATCD 189 Para 68

…To this could be added the observations of the Tribunal (constituted by SM Charles) in Gleeson v Cavers; Cavers v Gleeson [2021] NSWCATCD 158:…

View all 4 citing cases →

Cases cited in this decision · 14 of 14 shown

Wilson v Chan & Naylor Parramatta Pty Ltd
[2020] NSWCA 213 Para 28

…ion to which a leave application is made under s 34B of the NCAT Act. However, the Court of Appeal in Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 (8 September 2020) by majority (Macfarlan JA, Leeming JA; White JA dissenting) have left open the possibility of the Tribunal awarding costs where the cost…
Dalton v Qantas Airways Ltd
[2020] NSWCATCD 2 Para 25

…ion, the “proper course”. I disagree. In this respect, I prefer the approach of Deputy President Harrowell in Dalton v Qantas Airways Ltd [2020] NSWCATCD 2:…
Attorney General for New South Wales v Gatsby
[2018] NSWCA 254 Para 11

…In Attorney General for New South Wales v Gatsby (2018) NSWCA 254 (Gatsby) the Court of Appeal declared that the Tribunal is not a “court of a State” for the purpose of Ch III of the Constitution and s 39 of the Judiciary Act. The matter before the Court of Appeal in Gatsby was then remitted to the Tribunal to be dealt with in accordance with Part 3A…
Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development)
[2017] FCAFC 17 Para 14

…Referring to a series of earlier authorities including Rana v Google Inc [2017] FCAFC 17 and Burgundy Royale Investments Pty Ltd (Receivers and Managers Appointed) v Westpac Banking Corporation [1987] FCA 686, the applicable principles which are applied in making the determination of what constitutes a federal mat…
Old UGC Inc v Industrial Relations Commission of New South Wales
[2006] HCA 24 Para 8

…agree a hearing on that preliminary issue is the appropriate course. As Kirby J said in Old UGC v Industrial Relations Commission in Court Session [2006] HCA 24 at [51]:…
Macteldir Pty Ltd v Dimovski
[2005] FCA 1528

…same matter, the same controversy: Re Wakim 198 CLR at 587 [145] per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at 784 [36] as follows:…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd
[2001] HCA 1

…n federal jurisdiction, the entire matter is within federal jurisdiction: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at 571 [7] per Gleeson CJ, Gaudron and Gummow JJ . There is never any concurrent exercise of federal and State jurisdiction: Felton [197…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2000] FCA 1572

…ral jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale 18 FCR at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate [1980] HCA 32; 145 CLR 457 Indeed…
Re Wakim; Ex parte McNally
[1999] HCA 27 Para 20

…dings and the factual basis of the claim that the Builder engaged in misleading or deceptive conduct: see Rana v Google at [16] referring to Re Wakim [1999] HCA 27; 198 CLR 511 , where Gummow and Hayne JJ at [139] - [140]; 555 – 586 described a “matter” , and the process of its identification. In the Defence and…
Unilan Holdings Pty Ltd v Kerin
[1993] FCA 605

…thin it are ultimately resolved: Moorgate 145 CLR at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the…
Moorgate Tobacco Co Ltd v Philip Morris Ltd
[1980] HCA 32

…sso Australia Ltd [2000] FCA 1572; 104 FCR 564 at 597 [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate [1980] HCA 32; 145 CLR 457 Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it i…
Felton v Mulligan
[1971] HCA 39

…CA 1; 204 CLR 559 at 571 [7] per Gleeson CJ, Gaudron and Gummow JJ . There is never any concurrent exercise of federal and State jurisdiction: Felton [1971] HCA 39; 124 CLR 367 at 412-413 ; Moorgate 145 CLR at 471.…
Parisienne Basket Shoes Pty ltd v Whyte
[1938] HCA 7

…at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the…
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation
[1987] FCA 686

…ion: Felton 124 CLR at 374 per Barwick CJ; Moorgate 145 CLR at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matt…

Legislation cited in this decision · 5

Competition and Consumer Act 2010 (Cth)
2 mentions (from Para 5)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 7)
Civil Procedure Act 2005 (NSW)
1 mention
Fair Trading Act 1987 (WA)
1 mention (from Para 7)
Judiciary Act 1903 (Cth)
1 mention (from Para 10)

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: D O’Connor (Applicant/Cross-respondent) H Sonmez (Respondents/Cross-applicants) Solicitors: Nikola Velcic & Associates (Applicant/Cross-respondent) A Lloyd Legal (Respondents/Cross-applicants)
File Number(s):	HB 19/57318; HB 20/06029
Publication restriction:	Nil