Souleles v Todd - [2016] NSWCA 91

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Souleles v Todd [2016] NSWCA 91
Hearing dates: 28 April 2016
Date of orders: 02 May 2016
Decision date: 02 May 2016
Before: Beazley P, McColl JA
Decision:
(1) Summons seeking leave to appeal dismissed with costs.
(2) No order as to the costs of the adjourned hearing on 12 April 2016, with a view to each party bearing their own costs of that date.
Catchwords: PROCEDURE – application for leave to appeal from decision of Associate Judge – Associate Judge rejected applicant’s claim for relief in the nature of certiorari to review decision of Consumer, Trader and Tenancy Tribunal (CTTT) ordering applicant to pay damages to respondent – where applicant not present at hearing – whether Associate Judge erred in making factual findings concerning notification of hearing date to applicant – whether Associate Judge erred in holding that there had been no denial of procedural fairness in CTTT hearing case in applicant’s absence – whether Associate Judge erred in declining to hold CTTT had no jurisdiction to make the order against applicant – no arguable case warranting leave to appeal
PROCEDURE – costs – where error in Court of Appeal registry led to notice of hearing date for leave application not being received by respondent’s solicitors – where leave application adjourned in consequence – appropriate order as to costs
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Blue Haven Pools & Spas Ltd v Cunningham [2011] NSWSC 1435
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hudson v State of New South Wales [2012] NSWCA 319
Lee v New South Wales Crime Commission [2012] NSWCA 262
Sahade v Bischoff [2015] NSWCA 418
Category: Principal judgment
Parties: George Souleles (Applicant)
Georgina Todd (Respondent)
Representation:
Counsel:
A E Maroya (Applicant)
S J Stanton and M B Holmes (Respondent)
Solicitors:
NJ Papallo Lawyers (Applicant)
Jordan Djundja Lawyers (Respondent)

File Number(s): 2015/219253
Publication restriction: No
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law – Administrative Law

Citation:

[2015] NSWSC 862

Date of Decision:

2 July 2015

Before:

Harrison AsJ

File Number(s):

2014/327177

Judgment

THE COURT; The applicant, Mr George Souleles, seeks leave to appeal against the decision of Harrison AsJ dismissing his summons seeking judicial review of a decision of the Consumer, Trader and Tenancy Tribunal (the CTTT): Souleles v Todd [2015] NSWSC 862. In that decision the CTTT ordered the applicant to pay Ms Todd, the respondent in this Court, $60,374 being damages for breach of statutory warranties and breach of contract.
By his summons seeking judicial review, the applicant sought relief in the nature of a writ of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), on the basis that the CTTT had erred in law and/or made a jurisdictional error in determining the proceedings before it in…

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 Souleles v Todd

Details

AGLC: Souleles v Todd [2016] NSWCA 91
Case: [2016] NSWCA 91
Decision Date: 02 May 2016

CaseChat Overview and Summary

The applicant, Souleles, sought leave to appeal from a decision of an Associate Judge who had dismissed his application for certiorari. The certiorari application sought to quash a decision of the Consumer, Trader and Tenancy Tribunal (CTTT) that ordered Souleles to pay damages to the respondent, Todd. Souleles had not been present at the CTTT hearing.

The primary legal issues before the Court of Appeal were whether the Associate Judge had erred in making factual findings regarding the notification of the hearing date to Souleles, whether the Associate Judge had erred in concluding that there was no denial of procedural fairness at the CTTT hearing, and whether the Associate Judge had erred in declining to find that the CTTT lacked jurisdiction to make the order against Souleles.

The Court of Appeal found that there was no arguable case warranting leave to appeal. The Associate Judge's findings of fact concerning notification were open to her, and her conclusion that there had been no denial of procedural fairness was sound. Consequently, the Associate Judge had correctly declined to hold that the CTTT lacked jurisdiction.

The summons seeking leave to appeal was dismissed with costs. No order was made as to the costs of the adjourned hearing on 12 April 2016, with the intention that each party bear their own costs for that date.

Orders

Orders of the court

(1) Summons seeking leave to appeal dismissed with costs.

(2) No order as to the costs of the adjourned hearing on 12 April 2016, with a view to each party bearing their own costs of that date.

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:	Souleles v Todd [2016] NSWCA 91
Hearing dates:	28 April 2016
Date of orders:	02 May 2016
Decision date:	02 May 2016
Before:	Beazley P, McColl JA
Decision:	(1) Summons seeking leave to appeal dismissed with costs. (2) No order as to the costs of the adjourned hearing on 12 April 2016, with a view to each party bearing their own costs of that date.
Catchwords:	PROCEDURE – application for leave to appeal from decision of Associate Judge – Associate Judge rejected applicant’s claim for relief in the nature of certiorari to review decision of Consumer, Trader and Tenancy Tribunal (CTTT) ordering applicant to pay damages to respondent – where applicant not present at hearing – whether Associate Judge erred in making factual findings concerning notification of hearing date to applicant – whether Associate Judge erred in holding that there had been no denial of procedural fairness in CTTT hearing case in applicant’s absence – whether Associate Judge erred in declining to hold CTTT had no jurisdiction to make the order against applicant – no arguable case warranting leave to appeal PROCEDURE – costs – where error in Court of Appeal registry led to notice of hearing date for leave application not being received by respondent’s solicitors – where leave application adjourned in consequence – appropriate order as to costs
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Blue Haven Pools & Spas Ltd v Cunningham [2011] NSWSC 1435 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hudson v State of New South Wales [2012] NSWCA 319 Lee v New South Wales Crime Commission [2012] NSWCA 262 Sahade v Bischoff [2015] NSWCA 418
Category:	Principal judgment
Parties:	George Souleles (Applicant) Georgina Todd (Respondent)
Representation:	Counsel: A E Maroya (Applicant) S J Stanton and M B Holmes (Respondent) Solicitors: NJ Papallo Lawyers (Applicant) Jordan Djundja Lawyers (Respondent)
File Number(s):	2015/219253
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law – Administrative Law Citation: [2015] NSWSC 862 Date of Decision: 2 July 2015 Before: Harrison AsJ File Number(s): 2014/327177