Pozetu Pty Ltd v Alexander James Pty Ltd (No 2)

[2016] NSWCA 239

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Pozetu Pty Ltd v Alexander James Pty Ltd (No 2) [2016] NSWCA 239
Hearing dates:	14 July 2016
Decision date:	02 September 2016
Before:	McColl JA; Ward JA; Sackville AJA
Decision:	The judgment of the Court delivered on 12 August 2016 be amended pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.17 as stated in this judgment.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) s 7(1),(2) Uniform Civil Procedure Rules 2005 (NSW) r 36.17
Cases Cited:	Pozetu Pty Ltd v Alexander James Pty Ltd [2016] NSWCA 208
Category:	Consequential orders (other than Costs)
Parties:	Pozetu Pty Ltd (Applicant) Alexander James Pty Ltd (First Respondent) Christopher Dedman (Second Respondent) Christopher Hancock (Third Respondent) Anthony Maxworthy (Fourth Respondent)
Representation:	Counsel: Mr T Lynch / Ms R Francois (Applicant) Mr M Southwick (First, Third and Fourth Respondents) Mr M Pesman / Mr N Allan (Second Respondent)   Solicitors: Surry Partners Lawyers (Appellant) James Legal (First, Third and Fourth Respondents) Ziman & Ziman Solicitors (Second Respondent)
File Number(s):	2016/97697, 2016/99496
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Appeal Panel of the Civil and Administrative Tribunal Citation: [2015] NSWCATAP 228 Date of Decision: 21 October 2015 Before: F Marks, Principal Member; S Thode, Senior Member File Number(s): AP15/31810

Judgment

1. THE COURT: Judgment was delivered in this appeal on 12 August 2016. [1] It has since been drawn to the Court’s attention that the judgment of Sackville AJA did not differentiate between the role of the Administrative Decisions Tribunal (ADT) and the New South Wales Civil and Administrative Tribunal (NCAT) in the decision-making process that led to the decision of the Appeal Panel. The judgment as delivered contains references to the “Tribunal” and “NCAT” that are either incorrect or may be misinterpreted.

   1. Pozetu Pty Ltd v Alexander James Pty Ltd [2016] NSWCA 208 (Principal Judgment).

2. The applicant (Pozetu) commenced proceedings in the Retail Leases Division of the ADT, not NCAT. NCAT did not come into existence until 1 January 2014,[2] after the hearing in the ADT had been held, but before reasons were delivered in September 2014.

   2. Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 7(1),(2).

3. As a consequence of the oversight, the judgment contains a number of references to the “Tribunal” or “NCAT” that should be corrected so as to make it clear that the ADT was the Tribunal dealing with the matter at the relevant time. Some consequential changes are also required.

4. The errors in the judgment came about because of an accidental slip or omission, in that the commencement date of the NCAT Act was overlooked. There can be no controversy about the date the legislation came into force or the identity of the relevant Tribunal. Correction of the errors makes no difference to the reasoning or the outcome of the appeal. It is appropriate that the judgment be corrected pursuant to the slip rule. [3]

   3. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.17.

5. The following changes have been made to the Principal Judgment:

[16]   “Retail Leases Division of the Administrative Decisions Tribunal (ADT)” is substituted for “Tribunal”.

The following is added to footnote 12:

“Although commenced in the ADT, the proceedings were determined by the ADT sitting as NCAT: NCAT Act Sch1 Part 2 Div 1 cl 7(2).”

[25]   The following is substituted for [25] of the Principal Judgment:

“NCAT came into existence on 1 January 2014.37 Its predecessor was the Administrative Decisions Tribunal (ADT). The objects of the NCAT Act are stated in s 7(3) and include the following:

‘(d)   to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

(e)   to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality.’

Section 3(c) of the Administrative Decisions Tribunal Act 1997 (NSW), which was repealed by the NCAT Act, stated that the objects of the legislation included enabling “proceedings before the Tribunal to be determined in an informal and expeditious manner”.

37 NCAT Act s 7(1), (2).

[27]   The following has been substituted for [27] of the Principal Judgment.

“Although these proceedings were commenced before NCAT came into force, the object of resolving the real issues in the proceedings justly, quickly and cheaply has not been achieved in the present case. While this Court is not in a position to apportion responsibility, it is a cause for concern that what was essentially a relatively straightforward commercial dispute between legally represented parties should have taken so long to resolve. It is also a matter of concern that, as will appear, the proceedings seem to have been marked by a considerable degree of confusion as to the real issues in dispute.”

[28], [29], [30], [34], [39], [40], [44]

Substitute “the ADT” for “NCAT” or “the Tribunal”.

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Endnotes

Decision last updated: 02 September 2016