Kelly v Chulio & Ors - [2007] NSWSC 677

CITATION: Kelly v Chulio & Ors [2007] NSWSC 677
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 June 2007

JUDGMENT DATE :
4 July 2007

JUDGMENT OF: Hoeben J at 1

DECISION: The time for the filing of the plaintiff’s summons is extended to 29 November 2006; The plaintiff’s summons is dismissed; The plaintiff is to pay the costs of the first and second defendants of these proceedings

CATCHWORDS: Appeal from decision of Consumer Trader and Tenancy Tribunal - whether denial of procedural fairness - did Tribunal decide matter on basis other than that argued before it - whether refusal of adjournment amounted to denial of procedural fairness.

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001

CASES CITED: House v R (1936) 55 CLR 499
Italiano v Carbone [2005] NSWCA 177
Kioa v West (1985) 159 CLR 550
Touma v Saparas [2000] NSWCA 11

PARTIES: John Kelly trading as "Gardenscape Landscapes and Design" - Plaintiff
Suzanne Chulio - First Defendant
Antonio Chulio - Second Defendant
The Consumer, Trader and Tenancy Tribunal - Third Defendant

FILE NUMBER(S): SC 30163/2006

COUNSEL: Ms M Dolenec - Plaintiff
Dr Doyle - Defendants

SOLICITORS: Baker McDonell Solicitors - Plaintiff
The Builders' Lawyer - Defendants

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 06/10633

LOWER COURT JUDICIAL OFFICER : Jeffery Smith Member Consumer, Trader and Tenancy Tribunal

LOWER COURT DATE OF DECISION: 13 September 2006

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

HOEBEN J

Wednesday, 4 July 2007

30163/2006 - John KELLY trading as “GARDENSCAPE LANDSCAPES and DESIGN” v Suzanne CHULIO and Ors
JUDGMENT

1 HIS HONOUR: The plaintiff relies upon an Amended Summons filed in Court on 25 June 2007. In the Summons the plaintiff seeks an extension of time within which to file the Summons and orders setting aside the decision of the Consumer Trader and Tenancy Tribunal (CTTT) (Mr Smith) and remitting the matter for rehearing to the CTTT.

2 The Summons relies upon s 65(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) which relevantly provides:

“65(3) A Court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

…

(b) In relation to the hearing or determination of the matter, a party had been denied procedural fairness.”

3 The plaintiff submits that he was denied procedural fairness in two respects. Firstly, that the CTTT had decided the claim brought by the first and second defendants (the defendants) on a basis different to that on which their claim had been presented. Secondly, an application for adjournment had been wrongly refused so that the plaintiff had been prevented from properly presenting his case.

Factual background

4 In…

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 Kelly v Chulio & Ors

Details

AGLC: Kelly v Chulio [2007] NSWSC 677
Case: [2007] NSWSC 677
Decision Date: 4 July 2007

CaseChat Overview and Summary

The case of Kelly v Chulio & Ors involved an appeal from a decision made by the Consumer Trader and Tenancy Tribunal, challenging the Tribunal's ruling. The primary issue at hand was whether the Tribunal had denied procedural fairness to the appellant and whether it had decided the matter based on arguments that were not presented before it. The secondary issue was whether the Tribunal's refusal of an adjournment amounted to a denial of procedural fairness.

The court examined the grounds of the appeal, focusing on whether the Tribunal had erred in its procedural fairness and whether the refusal of an adjournment was justified. The court analysed the arguments presented by the parties and the submissions made during the proceedings before the Tribunal. It considered the nature of the proceedings and the obligations of the Tribunal to ensure procedural fairness. The court also assessed the circumstances surrounding the refusal of the adjournment and whether it had prejudiced the appellant's case.

The court determined that the Tribunal had not denied procedural fairness to the appellant and had not decided the matter on a basis other than that argued before it. It found that the Tribunal had acted within its discretion in refusing the adjournment, as the circumstances did not warrant a postponement of the hearing. The court concluded that the Tribunal had followed the proper procedure and had not erred in its decision-making process. Consequently, the appeal was dismissed, and the Tribunal's decision was upheld.

Orders