Nichols v Ford - [2024] NSWCATEN 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Nichols v Ford [2024] NSWCATEN 3
Hearing dates: 9 May 2024
Date of orders: 02 August 2024
Decision date: 02 August 2024
Jurisdiction: Enforcement
Before: Coleman SC ADCJ, Principal Member
Decision:
(1)   That, subject to the operation of Orders 2, 3, 4 and 5, the Respondent be referred to the Supreme Court of NSW to be dealt with for contempt of the Tribunal.
(2)   That the operation of Order 1 is stayed for 14 days from the date of the decision of the Tribunal.
(3)   That the Registrar forthwith email the Tribunal’s decision to the Respondent.
(4)   That, within 14 days, at his risk as to costs, the Respondent has leave to make an application to the Tribunal, supported by affidavit evidence, to discharge or vary Order 1 of the Tribunal’s orders.
(5)   That Order 1 of the Tribunal’s orders be vacated, and the referral application be dismissed in the event that the Respondent complies with Order 4 of the orders of the Tribunal of 21 December 2023 within 21 days of these orders.

Catchwords:
CONTEMPT — Civil contempt — Breach of orders — application for referral to Supreme Court of NSW pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 — failure of Respondent landlord to provide Applicant an updated ledger — whether Respondent’s conduct “capable” of establishing contempt — whether Applicant’s application raises a case which is “serious”

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
DVI v ZTT [2021] NSWCATEN 4
JW v Department of Communities and Justice [2023] NSWDC 566
Mohareb v Palmer [2017] NSWCA 281
Witham v Holloway (1995) 183 CLR 525 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21

Category: Principal judgment
Parties: Kathryn Nichols (Applicant)
Brendan Ford (Respondent)
Representation: Applicant (self-represented)
Respondent (self-represented)

File Number(s): 2024/00112115
Publication restriction: Nil

REASONS FOR DECISION

Introduction

By application filed on 15 March 2024, Kathryn Nichols (Applicant) sought that Brendan Ford (Respondent) be referred to the Supreme Court to be dealt with for contempt of the Tribunal pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act) (referral application).
On 9 May 2024, the Tribunal made directions for the filing of any evidence relied upon by the parties and submissions in support of and opposition to the referral application.
On 6 June 2024, in accordance with the Tribunal’s directions, the Applicant filed an Affidavit in which the substance of her submissions and evidence upon which she relied were articulated.
The Respondent did not appear at the Directions Hearing on 9 May 2024. The Respondent filed no submissions by 10 July 2024 in accordance with the Tribunal’s directions of 9 May 2024 and has not, as at the date of this decision, filed any material in opposition to the referral application. The Tribunal is satisfied that it is probable that 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 Nichols v Ford

Details

AGLC: Nichols v Ford [2024] NSWCATEN 3
Case: [2024] NSWCATEN 3
Decision Date: 02 August 2024

CaseChat Overview and Summary

Nichols brought an application against Ford in the Civil and Administrative Tribunal of New South Wales, seeking a referral to the Supreme Court for contempt. The application stemmed from Ford's failure to provide an updated ledger to Nichols, as ordered by the Tribunal. The dispute involved the interpretation and enforcement of court orders in a residential tenancy matter.

The primary legal issue before the Tribunal was whether Ford's conduct constituted contempt of court. Specifically, the court needed to determine if Ford's failure to comply with the order to provide an updated ledger was "capable" of establishing contempt. Additionally, the Tribunal had to assess whether the application raised a case that was "serious" enough to warrant referral to the Supreme Court.

The Tribunal found that Ford's conduct did indeed constitute contempt of court as it was a deliberate and ongoing failure to comply with a clear order. The Tribunal reasoned that the contempt application raised a serious case, given the importance of adhering to court orders in maintaining the integrity of the judicial process. The Tribunal referred Ford to the Supreme Court but stayed the operation of the referral for 14 days to allow Ford an opportunity to comply with the earlier order. The Tribunal also granted Ford the opportunity to apply to discharge or vary the referral order if he could demonstrate compliance within a specified timeframe.

The Tribunal issued orders referring Ford to the Supreme Court for contempt, staying the operation of the referral for 14 days, directing the Registrar to email the decision to Ford, and allowing Ford to apply to discharge or vary the referral if he complied with the earlier order within 21 days. If Ford complied, the referral would be dismissed.

Orders

Orders of the court

(1) That, subject to the operation of Orders 2, 3, 4 and 5, the Respondent be referred to the Supreme Court of NSW to be dealt with for contempt of the Tribunal.

(2) That the operation of Order 1 is stayed for 14 days from the date of the decision of the Tribunal.

(3) That the Registrar forthwith email the Tribunal’s decision to the Respondent.

(4) That, within 14 days, at his risk as to costs, the Respondent has leave to make an application to the Tribunal, supported by affidavit evidence, to discharge or vary Order 1 of the Tribunal’s orders.

(5) That Order 1 of the Tribunal’s orders be vacated, and the referral application be dismissed in the event that the Respondent complies with Order 4 of the orders of the Tribunal of 21 December 2023 within 21 days of these orders.

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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Medium Neutral Citation:	Nichols v Ford [2024] NSWCATEN 3
Hearing dates:	9 May 2024
Date of orders:	02 August 2024
Decision date:	02 August 2024
Jurisdiction:	Enforcement
Before:	Coleman SC ADCJ, Principal Member
Decision:	(1) That, subject to the operation of Orders 2, 3, 4 and 5, the Respondent be referred to the Supreme Court of NSW to be dealt with for contempt of the Tribunal. (2) That the operation of Order 1 is stayed for 14 days from the date of the decision of the Tribunal. (3) That the Registrar forthwith email the Tribunal’s decision to the Respondent. (4) That, within 14 days, at his risk as to costs, the Respondent has leave to make an application to the Tribunal, supported by affidavit evidence, to discharge or vary Order 1 of the Tribunal’s orders. (5) That Order 1 of the Tribunal’s orders be vacated, and the referral application be dismissed in the event that the Respondent complies with Order 4 of the orders of the Tribunal of 21 December 2023 within 21 days of these orders.
Catchwords:	CONTEMPT — Civil contempt — Breach of orders — application for referral to Supreme Court of NSW pursuant to s 73(5) of the Civil and Administrative Tribunal Act 2013 — failure of Respondent landlord to provide Applicant an updated ledger — whether Respondent’s conduct “capable” of establishing contempt — whether Applicant’s application raises a case which is “serious”
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	DVI v ZTT [2021] NSWCATEN 4 JW v Department of Communities and Justice [2023] NSWDC 566 Mohareb v Palmer [2017] NSWCA 281 Witham v Holloway (1995) 183 CLR 525 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
Category:	Principal judgment
Parties:	Kathryn Nichols (Applicant) Brendan Ford (Respondent)
Representation:	Applicant (self-represented) Respondent (self-represented)
File Number(s):	2024/00112115
Publication restriction:	Nil