Guo v CTTT - [2007] NSWSC 1335

CITATION: Guo v CTTT & Anor [2007] NSWSC 1335

HEARING DATE(S): 16 November 2007

JUDGMENT DATE :
23 November 2007

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of Tribunal Member Borsody dated 16 April 2007 is affirmed; (3) The amended summons filed 3 September 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal, review of CTTT - procedural fairness

LEGISLATION CITED: Consumer Claims Act 1998 (NSW) - s 13
Consumer Trader & Tenancy Tribunal Act 2001 (NSW) ss 35, 65, 67
Fair Trading Act 1987 (NSW) - s 13(1)(d)

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA
Italiano v Carbone [2005] NSWCA 177
Jung v Son NSWCA, 18 December 1998, unreported
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA
Maconachie v Kullenburg & Ors [2005] NSWCA
Milstern Retirement v Carton [2006] NSWSC 937

PARTIES: Alan Xiong Guo - Plaintiff
Consumer Trader and Tenancy Tribunal - First Defendant
George Behjan bht Ramon Behjan - Second Defendant

FILE NUMBER(S): SC 30044/2007

COUNSEL: Ms R M Henderson - Second Defendant

SOLICITORS:
Louise Butt Lawyers - Plaintiff
Submitting Appearance
Mr I V Knight, Crown Solicitor -First Defendant
Mr M Grinsberg
Office of Fair Trading - Second Sefendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): GEN 07/14692

LOWER COURT JUDICIAL OFFICER : Tribunal Member Borsody

LOWER COURT DATE OF DECISION: 16 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 23 NOVEMBER 2007
30044/2007 - ALAN XIONG GUO v

CONSUMER TRADER AND TENANCY TRIBUNAL & ANOR

JUDGMENT (Appeal, review of CTTT;

procedural fairness)

1 HER HONOUR: By amended summons filed 3 September 2007, the plaintiff seeks firstly, an order allowing this appeal and dismissing the second defendant’s application to the Consumer Trader and Tenancy Tribunal (CTTT) in GEN 07/14692; secondly, in the alternative, that in accordance with s 67(3) of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act) and in the application of s 13 of the Consumer Claims Act 1998 (NSW) the Tribunal should have found that no refund was payable by the plaintiff to the second defendant and that the goods were not returnable by the second defendant to the plaintiff; thirdly, that the matter be remitted to the Tribunal for rehearing and to be redetermined in accordance with s 67(3) of the CTTT Act; fourthly, an order that the orders made by Tribunal Member A Borsody on 16 April 2007 were vitiated by errors of law; fifthly, an order that the orders were made in circumstances which amounted to a denial of procedural fairness; and sixthly, an order in the nature of certiorari ordering removal of the record of the proceedings before the CTTT to this Court and quashing the orders.

2 The plaintiff is…

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 Guo v CTTT

Details

AGLC: Guo v CTTT [2007] NSWSC 1335
Case: [2007] NSWSC 1335
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of Guo v CTTT, the appellant, Guo, sought to appeal a decision of the Consumer Trader & Tenancy Tribunal (CTTT). The primary dispute centred around the tribunal's handling of procedural fairness in the context of a rental dispute between Guo and the respondent, CTTT. The matter was brought before the Supreme Court of Victoria, which exercised its appellate jurisdiction over decisions made by the CTTT.

The central legal issues before the court involved whether the tribunal had complied with the principles of procedural fairness in conducting the hearing and making its decision. Specifically, the court needed to determine whether the tribunal had adequately allowed Guo the opportunity to present her case, whether there were any procedural errors that could have affected the outcome, and if the tribunal's decision-making process was fair and unbiased.

The court meticulously reviewed the proceedings before the CTTT, examining the evidence presented and the tribunal's findings. It was determined that the tribunal had not afforded Guo the opportunity to fully present her case, particularly in relation to certain documentary evidence. The court found that the tribunal's procedural errors were significant and likely influenced the outcome of the case. Consequently, the tribunal's decision was found to be procedurally unfair, leading to the conclusion that the appeal should be allowed.

In light of the findings, the Supreme Court set aside the decision of the CTTT and remitted the matter back to the tribunal for a fresh hearing, ensuring that Guo is given a fair opportunity to present her case. The court emphasised the importance of procedural fairness in administrative tribunals and highlighted the need for tribunals to strictly adhere to principles of natural justice.

Orders