Macdonald v Macdonald - [2018] NSWSC 64

Supreme Court

New South Wales

Medium Neutral Citation: Macdonald v Macdonald [2018] NSWSC 64
Hearing dates: 1 February 2018
Decision date: 06 February 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Refuse leave to the plaintiff to appeal against the decision of the Appeal Panel made on 28 November 2016.

(2) Unless an application for a different order is made in writing to my Associate within seven days hereof, order the plaintiff to pay the defendant’s costs of the proceedings.
(3) Grant liberty to the party in whose favour a costs order is made (whether by default or following an application under (2) above) to make an application for a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), such application to be made in writing within seven days of a costs order becoming operative or within such time as directed by further order.
Catchwords: ADMINISTRATIVE LAW – appeal from Appeal Panel of Civil and Administrative Tribunal of NSW – alleged failure to comply with Procedural Direction – non-compliance not established – no procedural unfairness – leave refused
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 26, 83
Civil Procedure Act 2005 (NSW) s 98(4)
Residential Tenancies Act 2010 (NSW) ss 85, 187
Cases Cited: Lee v Imad [2017] NSWCATAP 128
McDonald v McDonald [2016] NSWCATAP 252
Texts Cited: Consumer and Commercial Division Procedural Direction No 3
Category: Principal judgment
Parties: Sini Moa Macdonald (Plaintiff)
Denis Halding Macdonald (Defendant)
Representation:
Counsel:
K Qoro (Plaintiff)
L Steer (Defendant)
Solicitors:
Pinnacle Lawyers (Plaintiff)
Young and Muggleton (Defendant)

File Number(s): 2016/368703
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Appeal Panel of the Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Consumer and Commercial Division

Citation:

McDonald v McDonald [2016] NSWCATAP 252

Date of Decision:

28 November 2016

Before:

AP Coleman SC, Senior Member and S Thode, Senior Member

File Number(s):

AP 16/38885

Judgment

Introduction

Sini Macdonald (the plaintiff) seeks leave to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against the decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Appeal Panel) made on 28 November 2016 (the Appeal Panel Decision). The Appeal Panel dismissed her appeal against orders made by Member Campbell in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT) on 23 March 2016 (the Tribunal Decision). She seeks, if leave is granted, an order that the Appeal Panel Decision be set aside.
An appeal to this Court from the Appeal Panel lies on a question of law, and is subject to leave.

The factual background

The background to the dispute

The following narrative is derived from findings recorded in the reasons of the Appeal Panel: McDonald v McDonald [2016] NSWCATAP 252.
The plaintiff and Denis Macdonald (the defendant) entered into a residential tenancy agreement whereby the plaintiff was to rent premises at Tempe which were owned…

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 Macdonald v Macdonald

Details

AGLC: Macdonald v Macdonald [2018] NSWSC 64
Case: [2018] NSWSC 64
Decision Date: 06 February 2018

CaseChat Overview and Summary

In the case of Macdonald v Macdonald, the applicant appealed against a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. The dispute arose from an application for review of a decision made under the Guardianship and Administration Act 2000. The applicant, who is the daughter of the deceased, sought to challenge the appointment of an administrator for her father's estate. The Appeal Panel dismissed the application for review, finding that the original decision-maker had not erred in appointing the administrator.

The primary legal issue before the court was whether the Appeal Panel had erred in upholding the appointment of the administrator. The applicant argued that the Appeal Panel had failed to comply with a Procedural Direction, which required the Panel to consider evidence that was not presented before the original decision-maker. The applicant also contended that the failure to consider this evidence resulted in procedural unfairness. The respondent argued that the Appeal Panel had not erred in law, and that the applicant had not established that the non-compliance with the Procedural Direction resulted in any unfairness.

The court found that the Appeal Panel had not failed to comply with the Procedural Direction, as the evidence in question was not relevant to the decision-making process. The court also held that there was no procedural unfairness, as the applicant had not demonstrated how the non-compliance with the Procedural Direction had affected the outcome of the appeal. The court further found that the Appeal Panel had properly exercised its discretion in considering the evidence that was before it. As a result, the appeal was dismissed and leave to appeal to a higher court was refused.

In conclusion, the court held that the Appeal Panel had not erred in law or caused any procedural unfairness in dismissing the applicant's challenge to the appointment of the administrator. The appeal was therefore dismissed, and the orders of the Appeal Panel were upheld.

Orders