Verma & Anor v Reynolds - [2019] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

VERMA & ANOR v REYNOLDS (Civil Dispute) [2019] ACAT 4

XD 800/2018
Catchwords: CIVIL DISPUTE – application to set aside procedural directions readying matter for hearing and to vacate hearing date – application dismissed – application brought for purpose of avoidance and delay – removal of Eric Polleycutt as representative for the respondent consequent upon his conduct inconsistent with the objects of the ACT Civil and Administrative Tribunal Act 2008

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 6

Subordinate

Legislation cited: Court Procedures Rules2006 s 425
ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2)

Cases cited:Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Chessell & Anor v Reynolds [2018] ACAT 107
Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14
Powley & Anor v Reynolds [2018] ACAT 103
Verma & Anor v Reynolds [2018] ACAT 89

Tribunal:Presidential Member G McCarthy

Date of Orders:  23 October 2018
Date of Reasons for Decision:     9 January 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 800/2018

BETWEEN:
KAVITA VERMA AND WILLIAM REES

Applicants
AND:
PATRICK REYNOLDS TRADING AS ARDGLASS WINDOWS
Respondent

TRIBUNAL:Presidential Member G McCarthy
DATE:23 October 2018
ORDER

The Tribunal orders that:

The respondent’s application dated 9 October 2018 for an order that the orders of Senior Member Robinson made on 4 October 2018 be set aside is dismissed, meaning in particular that the applicants’ application dated 20 June 2018 remains listed for hearing on Friday 7 December 2018 at 2:00pm.

The respondent’s application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.

The respondent’s application for an order that the applicants give consent for the respondent to inspect any building file held by the ACT Planning and Land Authority concerning properties where windows were installed is dismissed.

Mr Eric Polleycutt is removed as the representative of the respondent and Mr Eric Polleycutt must not take any further part in the proceeding.

The Tribunal notes:

(i) The applicant agreed for the respondent, and only the respondent, to attend their premises on 24 October 2018 between 9:30am and 10:30am for the purpose, and only for the purpose, of inspecting the windows installed by the respondent.
(ii) The Tribunal will publish its reasons.
…………….. Signed………………
Presidential Member G McCarthy

REASONS FOR DECISION

This matter is the third proceeding in which the respondent has been sued arising from his supply and installation of double-glazed residential windows and doors. The other two proceedings are Chessell & Anor v Reynolds[1] and Powley & Anor v Reynolds.[2]
[1] XD 22/2018
[2] XD 334/2018
On 23 October 2018, I heard interim applications brought by the respondent in each of the three proceedings. The applications were in materially the same terms. In each case, the respondent applied for an order, among many other orders, that the “matter be joined with or…

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.

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Details

Case: [2019] ACAT 4
Decision Date: 23 October 2018

CaseChat Overview and Summary

Verma and Anor v Reynolds was heard by the Administrative Appeals Tribunal, where the applicants sought to challenge the respondent's installation of windows at specified properties. The applicants sought various reliefs, including the setting aside of prior orders, the joining of additional parties, and an inspection of relevant building files. The respondent, in turn, filed several applications, including one to set aside the applicants' application and another to join additional parties to the proceeding.

The legal issues before the Tribunal encompassed the validity of the applicants' initial application, the appropriateness of joining additional parties to the proceeding, the admissibility of inspecting certain building files, and the removal of the respondent's representative. The Tribunal had to assess the procedural fairness and the merits of the respondent's applications.

In its decision, the Tribunal dismissed all of the respondent's applications, including the request to set aside the applicants' application, to join additional parties, and to inspect the building files. The Tribunal determined that the respondent's representative, Mr Eric Polleycutt, should be removed from the proceeding due to concerns regarding his conduct. The Tribunal also noted an agreement between the parties to allow the respondent to inspect the windows installed by them, specifying the time and purpose of such inspection.

The Tribunal concluded by noting that its reasons for the decision would be published, and it ordered the dismissal of the respondent's applications, the removal of Mr Polleycutt, and an agreement for the inspection of the windows.

Orders

Orders of the court

The Tribunal orders that:

The respondent’s application dated 9 October 2018 for an order that the orders of Senior Member Robinson made on 4 October 2018 be set aside is dismissed, meaning in particular that the applicants’ application dated 20 June 2018 remains listed for hearing on Friday 7 December 2018 at 2:00pm.

The respondent’s application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.

The respondent’s application for an order that the applicants give consent for the respondent to inspect any building file held by the ACT Planning and Land Authority concerning properties where windows were installed is dismissed.

Mr Eric Polleycutt is removed as the representative of the respondent and Mr Eric Polleycutt must not take any further part in the proceeding.

The Tribunal notes:

(i) The applicant agreed for the respondent, and only the respondent, to attend their premises on 24 October 2018 between 9:30am and 10:30am for the purpose, and only for the purpose, of inspecting the windows installed by the respondent.

(ii) The Tribunal will publish its reasons.

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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