McCann v Nationwide Consultants Pty Ltd - [2013] NSWDC 205

District Court

New South Wales

Medium Neutral Citation: McCann v Nationwide Consultants Pty Ltd [2013] NSWDC 205
Hearing dates: 1 August 2013
Decision date: 01 August 2013
Before: Gibson DCJ
Decision:
(1) Defendant called outside the court three times at 10.10 am and 11.45 am - no appearance.
(2) Extend time to bring the appeal to 28 March 2013.
(3) Grant leave to the plaintiffs to rely upon additional evidence (the further statement and report of Mr Appleyard) and affidavits of service in relation to notification of the defendant.
(4) Appeal allowed.
(5) Order 1 of the CTTT varied as to quantum by omitting "$87,021.00" and inserting "$163,046.00".
(6) Defendant pay plaintiffs' costs of the application.

Catchwords: CTTT APPEAL - application to extend time to appeal - whether a rejection of unchallenged evidence amounts to absence of procedural fairness - conduct of CTTT hearings where one party fails to appear - whether hearing should be remitted to the CTTT or the court should proceed under s 67(3)(a) to make such orders as ought to have been made in the Tribunal
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28(5) and 67
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 50.2, 50.3, 50.12 and 50.16
Cases Cited: Brewarrina Shire Council v Beckhouse [2005] NSWCA 248
Costa v Public Trustee (NSW) [2008] NSWCA 223
Edyp v Brazbuild Pty Ltd [2011] NSWCA 218
Kingdon v Kirk (1887) 37 Ch D 141
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Obieta v CTTT [2009] NSWCA 220
Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188
Palmer v Clarke (1989) 19 NSWLR 158
Ryder v Frohlich [2004] NSWCA 472
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Stone v Smith (1887) 35 Ch D 188
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230
The Craftsmen Restorations & Renovations Pty Ltd v Boland [2011] NSWCA 147
Vithoulkas v Owners Corporation SP62254 [2004] NSWSC 540
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Peter McCann
Second Plaintiff: Alex Merton-McCann
Defendant: Nationwide Consultants Pty Ltd (ACN 003 108 601)
Representation: Plaintiffs: Mr T To
Defendant: No appearance
Plaintiffs: Hones La Hood
Defendant: No appearance

File Number(s): 2013/95470
Publication restriction: None

Judgment

This is an appeal pursuant to s 67 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Act"). Such appeals are limited to decisions on a question with respect to a matter of law (s 67(1)).

The defendant has not participated either in this appeal or in the hearing in the tribunal below. This put the Tribunal Member hearing the case in a position of some difficulty. The hearing before the Consumer, Trader and Tenancy Tribunal ("the Tribunal") commenced on 22 November 2012 when the Tribunal was taken to the evidence and submissions made. It was adjourned after the Tribunal Member raised an issue about jurisdiction to make an…

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.

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Details

Case: [2013] NSWDC 205
Decision Date: 01 August 2013

CaseChat Overview and Summary

The plaintiff, McCann, filed an appeal against the decision of the Construction and Technical Training Tribunal (CTTT), with Nationwide Consultants Pty Ltd being the defendant. The crux of the dispute pertained to the quantum of an order made by the CTTT, which McCann contended was erroneous. The appeal was lodged outside the statutory time limit, necessitating an application to extend the time to bring the appeal. Additionally, McCann sought to introduce additional evidence and affidavits which had not been considered by the CTTT. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the CTTT's rejection of unchallenged evidence amounted to a denial of procedural fairness. Furthermore, the court needed to decide the appropriate course of action in the context of the defendant's failure to appear at the hearing, specifically whether the matter should be remitted back to the CTTT or if the court should proceed under section 67(3)(a) of the relevant legislation to make the orders that ought to have been made by the CTTT. The court had to consider whether the procedural shortcomings warranted a remittal or if it was appropriate to exercise its discretion to make the necessary orders itself.

The court found that the CTTT's rejection of unchallenged evidence did not amount to a denial of procedural fairness, as the tribunal had discretion to consider or disregard any evidence. The court also determined that despite the defendant's failure to appear, it was appropriate to exercise its discretion under section 67(3)(a) to make the orders that should have been made by the CTTT. The court allowed the appeal, varied the quantum of the order, and granted McCann's application to rely on additional evidence and affidavits. The defendant was ordered to pay the plaintiffs' costs of the application.

The court's final orders included extending the time to bring the appeal, allowing the appeal, varying the quantum of the CTTT's order, and directing the defendant to pay the plaintiffs' costs. The court granted leave to McCann to rely on additional evidence and affidavits, and remitted the matter back to the CTTT for reconsideration of the quantum of the order, with specific instructions on the amount to be paid.

Orders

Orders of the court

(1) Defendant called outside the court three times at 10.10 am and 11.45 am - no appearance.

(2) Extend time to bring the appeal to 28 March 2013.

(3) Grant leave to the plaintiffs to rely upon additional evidence (the further statement and report of Mr Appleyard) and affidavits of service in relation to notification of the defendant.

(4) Appeal allowed.

(5) Order 1 of the CTTT varied as to quantum by omitting "$87,021.00" and inserting "$163,046.00".

(6) Defendant pay plaintiffs' costs of the application.

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:	McCann v Nationwide Consultants Pty Ltd [2013] NSWDC 205
Hearing dates:	1 August 2013
Decision date:	01 August 2013
Before:	Gibson DCJ
Decision:	(1) Defendant called outside the court three times at 10.10 am and 11.45 am - no appearance. (2) Extend time to bring the appeal to 28 March 2013. (3) Grant leave to the plaintiffs to rely upon additional evidence (the further statement and report of Mr Appleyard) and affidavits of service in relation to notification of the defendant. (4) Appeal allowed. (5) Order 1 of the CTTT varied as to quantum by omitting "$87,021.00" and inserting "$163,046.00". (6) Defendant pay plaintiffs' costs of the application.
Catchwords:	CTTT APPEAL - application to extend time to appeal - whether a rejection of unchallenged evidence amounts to absence of procedural fairness - conduct of CTTT hearings where one party fails to appear - whether hearing should be remitted to the CTTT or the court should proceed under s 67(3)(a) to make such orders as ought to have been made in the Tribunal
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28(5) and 67 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 50.2, 50.3, 50.12 and 50.16
Cases Cited:	Brewarrina Shire Council v Beckhouse [2005] NSWCA 248 Costa v Public Trustee (NSW) [2008] NSWCA 223 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Kingdon v Kirk (1887) 37 Ch D 141 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Obieta v CTTT [2009] NSWCA 220 Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188 Palmer v Clarke (1989) 19 NSWLR 158 Ryder v Frohlich [2004] NSWCA 472 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Stone v Smith (1887) 35 Ch D 188 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230 The Craftsmen Restorations & Renovations Pty Ltd v Boland [2011] NSWCA 147 Vithoulkas v Owners Corporation SP62254 [2004] NSWSC 540
Texts Cited:	-
Category:	Principal judgment
Parties:	First Plaintiff: Peter McCann Second Plaintiff: Alex Merton-McCann Defendant: Nationwide Consultants Pty Ltd (ACN 003 108 601)
Representation:	Plaintiffs: Mr T To Defendant: No appearance Plaintiffs: Hones La Hood Defendant: No appearance
File Number(s):	2013/95470
Publication restriction:	None