Vero Insurance Limited v Walker - [2004] NSWSC 1071

CITATION: Vero Insurance Limited v Walker & Ors [2004] NSWSC 1071

HEARING DATE(S): 2 November 2004

JUDGMENT DATE:
16 November 2004

JURISDICTION:
Common Law - Administrative Law List

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of Tribunal Member Ms K Thane made on 27 May 2004 is affirmed; (3) The amended summons is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - s 67 - what is a question with respect to a matter of law

LEGISLATION CITED: Commercial Tribunal Act 1984 (NSW) - s 20(5)
Consumer, Trader & Tenancy Act 2001 (NSW) - s 67

CASES CITED: Australian Gas Light Company v the Valuer-General57 WN 53
B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Canham & Ors v Australian Guarantee Corporation Limited & Ors (1990) ASC 55-984
Custom Credit Corporation Limited (in Liquidation) v Commercial Tribunal of New South Wales & Ors [2000] ASC 155-1041; [1999] NSWSC 1021
FAI General Insurance Company Limited v Brookman & Anor [2000] NSWSC 6
Fair Trading v Owners Corporation Strata Plan 46789 [2004] NSWSC 443
Scottish Amicale Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909

PARTIES :

Vero Insurance Limited (formerly Royal & Sun Alliance Insurance Australia Limited)
(Plaintiff)
Christopher Walker
(First Defendant)
Richard Pitt
(Second Defendant)
Bliss Constructions Pty Limited
(Third Defendant)
CTTT
(Fourth Defendant)

FILE NUMBER(S): SC 30041/2004

COUNSEL:
Mr G McVay
(Plaintiff)
Mr J B Whittle SC with Mr J V Gooley
(First Defendant)

SOLICITORS:
Mr D Curry,
McLachlan Chilton
(Plaintiff)
Mr D Maccallum,
Maccallum Lawyers
(First Defendant)

LOWER COURTJURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 03/24969

LOWER COURT
JUDICIAL OFFICER : Tribunal Member Ms K Thane

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MASTER HARRISON

TUESDAY, 16 NOVEMBER 2004
30041/2004 - VERO INSURANCE LIMITED (FORMERLY

ROYAL & SUN ALLIANCE INSURANCE AUSTRALIA LIMITED) v CHRISTOPHER WALKER & Ors

JUDGMENT (Appeal decision of CTTT - s 67 of the Consumer, Trader & Tenancy Act 2001 (NSW) - what is a question with respect to a matter of law)

1 MASTER: By summons filed 11 June 2004 the plaintiff, pursuant to s 67(1) of the Consumer, Trader & Tenancy Act 2001 (NSW) (the Act) claims: firstly, that the appeal be allowed; secondly, an order that the decision of the Consumer Trader and Tenancy Tribunal (CTTT) given by Tribunal Member Ms K Thane on 27 May 2004 in matter number HB 03/24969 be set aside; thirdly, an order staying the decision pending the determination of these proceedings or until further order; and fourthly, a declaration on a proper construction of an agreement dated 16 March 1999 that the second defendant signed the agreement as a director of the third defendant.

2 The plaintiff is Vero Insurance…

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: [2004] NSWSC 1071
Decision Date: 16 November 2004

CaseChat Overview and Summary

Vero Insurance Limited sought to appeal a decision made by the Consumer and Trade Tribunal (CTTT) against Walker. The dispute centred on the validity of a policy cancellation and the subsequent claim made by Walker for damages. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the appeal was valid under section 67 of the Consumer and Trade Tribunal Act, specifically focusing on whether the question raised by Vero Insurance Limited constituted a matter of law. The court had to determine if the appeal was based on a point of law that warranted review or if it was more appropriate for the CTTT's decision to stand.

The court concluded that the question raised by Vero Insurance Limited did not pertain to a matter of law but rather involved an interpretation of the facts and evidence presented to the CTTT. The court found that the appeal was not valid under section 67, as it did not involve a question of law. Consequently, the appeal was dismissed, and the CTTT's decision remained in place.

Orders