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Macdonald v Macdonald

Macdonald v Macdonald

Case [2017] NSWSC 809 21 June 2017

Statutory Interpretation

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Macdonald v Macdonald [2017] NSWSC 809
Hearing dates: 1 June 2017, 7 June 2017 (written submissions) and 15 June 2017 (written submissions)
Date of orders: 21 June 2017
Decision date: 21 June 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Mr Macdonald’s motion is dismissed.

Catchwords: PRACTICE AND PROCEDURE – notice of motion – orders sought refusing leave and dismissing summons under s 34 of the Civil and Administrative Act 2013 (NSW) – appeal of NCAT decision – proper construction of s 34 and s 83 of the Civil and Administrative Act 2013 (NSW) – whether leave to appeal should be refused at this stage of proceedings – motion dismissed
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (repealed)
District Court Act 1973 (NSW)
Residential Tenancies Act 2010 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Altaranesi v Sydney Local Health District [2012] NSWCA 69
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lee v Imad [2017] NSWCATAP 128
Macdonald v Macdonald (Supreme Court (NSW), Darke J, 31 May 2017, unrep)
Macdonald v Macdonald [2016] NSWCATAP 252
Muldoon v Church of England Children's Homes Burwood (2011) 91 NSWLR 588; [2011] NSWCA 46
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513; [2001] HCA 34
Sing Kian Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Limited [2017] NSWSC 234
Wende v Horwath (No 2) (20156) 91 NSWLR 588; [2015] NSWCA 416
Category: Procedural and other rulings
Parties: Sini Moa Macdonald (Plaintiff)
Denis Halding Macdonald (Defendant)
Representation:
Ms L Steer, solicitor (Defendant)
Solicitors:
Self-represented (Plaintiff)
Young and Muggleton (Defendant)

File Number(s): 2016/368703
Publication restriction: None

Judgment

Mr and Mrs Macdonald have long been divorced. After their property settlement, Mrs Macdonald continued living with their daughter, rent free, at a property at Tempe of which Mr Macdonald was the sole registered proprietor, following the transfer of Mrs Macdonald’s interest in the property to him. Mr Macdonald eventually brought proceedings in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal, to terminate a written residential tenancy agreement which he and Mrs Macdonald had entered in 2013. The proceedings were resolved at conciliation by Mr and Mrs Macdonald entering a conciliation agreement, which they and the Conciliator signed. Thereby Mrs Macdonald agreed to vacate the premises on 11 June 2016. Consent orders reflecting the agreement were also then entered.
Mrs Macdonald did not,…

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 [2017] NSWSC 809
Case: [2017] NSWSC 809
Decision Date: 21 June 2017

CaseChat Overview and Summary

The parties involved in this case were Macdonald and Macdonald, who were embroiled in a legal dispute that eventually reached the court. The nature of the dispute centred around an appeal of a decision made by the NCAT, and specifically, the proper construction of sections 34 and 83 of the Civil and Administrative Act 2013 (NSW). The case was heard in a court of law, which was required to decide on the legal issues presented. The primary legal issues the court needed to address were whether leave to appeal should be refused at this stage of the proceedings, and whether the orders sought by the appellant, which included refusing leave and dismissing the summons under section 34 of the Civil and Administrative Act 2013 (NSW), were appropriate.

The court's reasoning in this case involved a thorough examination of the relevant sections of the Civil and Administrative Act 2013 (NSW). The court considered the arguments presented by both parties and the implications of granting or denying leave to appeal. Ultimately, the court dismissed the motion, finding that the appellant had not demonstrated a sufficient ground for the court to grant leave to appeal at this stage of the proceedings. The court held that the proper construction of sections 34 and 83 of the Civil and Administrative Act 2013 (NSW) did not support the appellant's application for leave to appeal. Consequently, the appeal was dismissed, and the orders sought by the appellant were refused.

No additional paragraph is required in this case as the court's decision and reasoning are concise and clear. The final orders of the court were that the motion was dismissed, and leave to appeal was refused. This decision serves as a reminder to practitioners that the court will carefully consider the grounds for an appeal and the proper construction of relevant legislation when deciding on applications for leave to appeal.

Orders