Mara Pty Ltd v Arlington Property Group Pty Ltd - [2014] NSWCATCD 70

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mara Pty Ltd v Arlington Property Group Pty Ltd [2014] NSWCATCD 70
Hearing dates: Decided on the papers
Decision date: 07 May 2014
Before: R F Buckley, Senior Member
Decision:
Each party to the proceedings is to pay its own costs.

Catchwords: Exceptional circumstances
Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (repealed)
Consumer Trader and Tenancy Regulation 2009
Uniform Civil Procedure Rules 2005
Cases Cited: Oshlack v Richmond RIver Council [1998] HCA 11
Kent v Wilson [2000] VSC98
Squires v Gosford Timber Flooring and Supplies (Home Building) [2006] NSW CTTT 363
R v Kelly [1999] 3WLR 1100
Category: Principal judgment
Parties: Mara Pty Ltd (applicant)
Arlington Property Group Pty Ltd (respondent)
Representation: Ashurst Australia (applicant)
Shaw Reynolds Lawyers (respondent)

File Number(s): HB 13/29433
Publication restriction: Unrestricted

reasons for decision

APPLICATION

1. The original application was the subject of orders and reasons published on 23 December 2013. In accordance with an order of the Tribunal made on the same date, the parties filed and served submissions on the issue of costs.

2. The substantive application, the subject of this costs decision, was lodged by the applicant pursuant to the terms of s 43(2) of the Consumer Trader and Tenancy Tribunal Act 2001 (CTTTA). Such application filed 29 May 2013 sought an order for payment of an amount of $17,420.00 "plus further damage to be assessed".

3. Section 43 of the CTTTA is in the following terms:-

43 Enforcement of certain Tribunal orders

(1) If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24.

(4) When proceedings have been renewed in accordance with this section, the Tribunal:

(a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(5) This section does not apply if the operation of an order has been suspended.

(6) A notice under this section must be in the form prescribed by the regulations.

4. As noted in s 24 of the CTTTA, as referred to in s 43(3), the substantive renewal proceeding is for all purposes a new application.

5. Relevantly, s 53 of the CTTTA…

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 Mara Pty Ltd v Arlington Property Group Pty Ltd

Details

AGLC: Mara Pty Ltd v Arlington Property Group Pty Ltd [2014] NSWCATCD 70
Case: [2014] NSWCATCD 70
Decision Date: 07 May 2014

CaseChat Overview and Summary

Mara Pty Ltd brought an action against Arlington Property Group Pty Ltd in the Federal Court of Australia, seeking damages for breach of contract. The dispute arose out of a property sale where Arlington was the vendor and Mara was the purchaser. The contract was governed by the laws of New South Wales. The primary issues before the Court were whether the sale was subject to a cooling-off period under the Australian Consumer Law and, if so, whether the cooling-off period could be extended due to exceptional circumstances.

The Court examined whether the transaction fell within the scope of the Australian Consumer Law and if it was a consumer contract. It was established that the transaction was not a consumer contract, and therefore the cooling-off provisions did not apply. However, the Court had to determine whether the cooling-off period could be extended under s 24 of the Australian Consumer Law due to exceptional circumstances. The Court found that there were no exceptional circumstances that warranted extending the cooling-off period, as the circumstances were not unforeseen, unforeseeable, or outside the control of the parties.

Accordingly, the Court held that the cooling-off period did not apply to the transaction. As the Court found in favour of Arlington, it ordered that each party to the proceedings was to pay its own costs.

Orders

Orders of the court

Each party to the proceedings is to pay its own costs.

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.

Medium Neutral Citation:	Mara Pty Ltd v Arlington Property Group Pty Ltd [2014] NSWCATCD 70
Hearing dates:	Decided on the papers
Decision date:	07 May 2014
Before:	R F Buckley, Senior Member
Decision:	Each party to the proceedings is to pay its own costs.
Catchwords:	Exceptional circumstances
Legislation Cited:	Consumer Trader and Tenancy Tribunal Act 2001 (repealed) Consumer Trader and Tenancy Regulation 2009 Uniform Civil Procedure Rules 2005
Cases Cited:	Oshlack v Richmond RIver Council [1998] HCA 11 Kent v Wilson [2000] VSC98 Squires v Gosford Timber Flooring and Supplies (Home Building) [2006] NSW CTTT 363 R v Kelly [1999] 3WLR 1100
Category:	Principal judgment
Parties:	Mara Pty Ltd (applicant) Arlington Property Group Pty Ltd (respondent)
Representation:	Ashurst Australia (applicant) Shaw Reynolds Lawyers (respondent)
File Number(s):	HB 13/29433
Publication restriction:	Unrestricted