Souleles v Todd - [2015] NSWSC 862

Supreme Court

New South Wales

Medium Neutral Citation: Souleles v Todd [2015] NSWSC 862
Hearing dates: 25 June 2015
Date of orders: 02 July 2015
Decision date: 02 July 2015
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The summons filed 6 November 2014 is dismissed.
(2) The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW – judicial review – decision of member of the Consumer, Trader and Tenancy Tribunal – operation of CTTT Tribunal notice of hearing provisions – when proceedings may be held in absence of party
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Austral Brick Co Pty Ltd v Rami El Hayek t/as RCV Stoneworks [2013] NSWSC 571
Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435
Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298
David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551
Italiano v Carbone & Ors [2005] NSWCA 177
Category: Principal judgment
Parties: George Souleles (Plaintiff)
Georgina Todd (Defendant
Representation:
Counsel:
M McAuley (Plaintiff)
SJ Stanton with MB Holmes (Defendant)
Solicitors:
NJ Papallo Lawyers (Plaintiff)
Jordan Djundja Lawyers (Defendant)

File Number(s): 2014/327177
Publication restriction: Nil

Judgment

HER HONOUR: By summons filed 6 November 2014, the plaintiff seeks firstly, an order extending the time for commencing proceedings by summons under Rule 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, a declaration that the whole of the decision of the Consumer, Trader and Tenancy Tribunal (“CTTT”) dated 7 August 2013, numbered HB 12/63536 (“CTTT decision”) is vitiated by jurisdictional error; thirdly, an order in the nature of certiorari, removing the CTTT decision into this and quashing the CTTT decision; and finally, an order remitting matter numbered HB 12/63536 to the NSW Civil and Administration Tribunal to be determined according to law.
The plaintiff in this Court is George Souleles, who was the defendant in the CTTT proceedings. The first defendant in these proceedings is Georgina Todd, who was the plaintiff in the CTTT proceedings. The second defendant is the Consumer, Trader and Tenancy Tribunal. The third defendant is the Local Court of New South Wales. The second defendant has filed a submitting appearance. The Local Court has no involvement in this judicial review. By consent, I have removed it as the third defendant. For convenience, I shall refer to the parties by name.
Mr Souleles relied upon two of his affidavits dated 4 February 2015 and 23 June 2015 and the affidavit of his solicitor Richard Kouchoo dated 3 February 2015.
These proceedings were heard prior to 1 January 2014. On 1 January 2014, the CTTT was abolished and the NSW Civil and Administrative Tribunal (“NCAT”) was established.…

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 [2015] NSWSC 862
Case: [2015] NSWSC 862
Decision Date: 02 July 2015

CaseChat Overview and Summary

The proceedings involved a dispute between Souleles, the applicant, and Todd, the respondent, before the Federal Court of Australia. The applicant sought judicial review of a decision made by a member of the Consumer, Trader and Tenancy Tribunal (CTTT) regarding the operation of the notice of hearing provisions under the CTTT Act. The dispute centred on whether the Tribunal member had the authority to proceed with the hearing in the absence of the applicant, who had been notified of the hearing but did not attend.

The central legal issue before the court was whether the Tribunal member correctly exercised their discretion under section 102 of the CTTT Act to proceed with the hearing in the absence of the applicant. The court had to determine whether the Tribunal member's decision to proceed was lawful, reasonable, and in accordance with the statutory provisions.

The court found that the Tribunal member's decision to proceed with the hearing in the absence of the applicant was lawful and reasonable. The applicant had been duly notified of the hearing and had failed to appear despite the notice. The court held that the Tribunal member was entitled to exercise their discretion under section 102 of the Act, which allows for proceedings to be held in the absence of a party if they have been notified and fail to appear. The court emphasised the importance of the notice provisions and the need for parties to attend hearings to ensure fairness and due process. Consequently, the court dismissed the application for judicial review.

Orders