Mikel v Dudley - [2008] NSWSC 1090

CITATION: MIKEL v DUDLEY & ORS [2008] NSWSC 1090

HEARING DATE(S): Wednesday 15 October 2008

JUDGMENT DATE :
15 October 2008

JURISDICTION: Administrative Law

JUDGMENT OF: Hall J at 1

EX TEMPORE JUDGMENT DATE: 15 October 2008

DECISION: Appeal dismissed. Plaintiff is to pay the first and second defendants' costs

CATCHWORDS: ADMINISTRATIVE LAW – CONSUMER TRADER & TENANCY TRIBUNAL – appeal under s.67 of the Act against a Tribunal decision on a question with respect to a matter of law – relief also claimed under s.65 of the Act on basis of alleged breach of procedural fairness by Tribunal – complaints held to be challenges to findings of fact falling outside the ambit of s.67 of the Act – no breach of procedural fairness in Tribunal refusing to permit cross-examination of a party or in refusing to grant an application to join a third person to the proceedings – no obligation on Tribunal to exercise its power under s. 39 to call witnesses

LEGISLATION CITED: Commercial Tribunal Act 1984
Consumer, Trader and Tenancy Tribunal Act 2001
Home Building Act 1989

CASES CITED: Forrester v Harris Farm Pty Limited (1996) 129 FLR 431
Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312
Prentice v Cummins (No 6) [2003] FCA 1002

PARTIES: Frank MIKEL v
Alison DUDLEY & ORS

FILE NUMBER(S): SC No 30100 of 2007

COUNSEL: P: W S Veitch
1/2D: E Petersen

SOLICITORS: P: N/A
1/2D: Macquarie Legal Centre
3D: I V Knight (submitting appearance)

LOWER COURT JURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT JUDICIAL OFFICER : G J Durie

LOWER COURT DATE OF DECISION: 20 August 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HALL J

THURSDAY 15 OCTOBER 2008

No 30100 of 2007

FRANC MIKEL v ALISON DUDLEY & ORS
JUDGMENT

1 HIS HONOUR: These proceedings concern an order made by the Consumer Trader and Tenancy Tribunal, the third defendant in the proceedings, on 20 August 2007 in favour of the first and second defendants against the plaintiff.

2 On that date, the Tribunal ordered that the plaintiff pay the first and second defendants $122,995.92, the Tribunal having determined the application made by the defendants for reasons set out in the decision given on the date I have referred to.

3 The application before the Tribunal was a claim made by the first and second defendants for damages as home-owners against the plaintiff, a licensed builder, together with a cross-application for the balance of contract monies said by the plaintiff to be owed by the defendants to him.

4 The building project involved the construction of a two-storey home at Lot 17 St Andrews Close, Belrose. The Tribunal had jurisdiction to determine the proceedings pursuant to the Home Building Act 1989, ss.48A, 48B and 48K.

5 On the hearing of the proceedings in this Court, Mr W S Veitch of counsel appeared on behalf of the plaintiff and Mr E Petersen of counsel appeared on behalf of the…

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 Mikel v Dudley

Details

AGLC: Mikel v Dudley [2008] NSWSC 1090
Case: [2008] NSWSC 1090
Decision Date: 15 October 2008

CaseChat Overview and Summary

In the case of Mikel v Dudley, the dispute arose from an appeal by the appellant, Mikel, against a decision of the Consumer Trader and Tenancy Tribunal. The appellant sought to challenge the Tribunal's decision on several grounds, including an alleged breach of procedural fairness and the refusal to allow cross-examination of a party and to join a third party to the proceedings. The appellant also argued that the Tribunal had an obligation to exercise its power under section 39 to call witnesses. The case was heard in the Supreme Court of Queensland, with the court considering whether the appeal was valid under section 67 of the Act, which pertains to questions of law, and whether there was a breach of procedural fairness under section 65 of the Act.

The primary legal issue before the court was whether the complaints raised by the appellant were challenges to findings of fact or questions of law, as the distinction determines the appropriate avenue for appeal. The court had to assess whether the appellant's complaints about the Tribunal's refusal to allow cross-examination or to join a third party, and the failure to call witnesses, constituted a breach of procedural fairness or were instead challenges to findings of fact. Additionally, the court needed to determine if the Tribunal's refusal to permit cross-examination or to grant the application to join a third person constituted a breach of procedural fairness.

The court found that the appellant's complaints were indeed challenges to findings of fact rather than questions of law. As such, they fell outside the scope of an appeal under section 67 of the Act. The court further held that there was no breach of procedural fairness in the Tribunal's decision to refuse cross-examination or to join a third party to the proceedings. The court emphasised that it is not obligated to exercise its power under section 39 to call witnesses unless there is a specific reason to do so. Consequently, the appeal was dismissed, and the Tribunal's decision was upheld.

The court's final orders were that the appeal be dismissed with costs. The court determined that the appellant's complaints were challenges to factual findings and not questions of law, and that there was no procedural unfairness in the Tribunal's decisions regarding cross-examination and the addition of a third party. Furthermore, the court confirmed that it had no obligation to exercise its power under section 39 to call witnesses.

Orders