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 50.16Cases 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 540Texts 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…
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- Case
- [2013] NSWDC 205
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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