Wallace v Curry & 2 Ors - [2007] NSWSC 71

CITATION: Wallace v Curry & 2 Ors [2007] NSWSC 71

HEARING DATE(S): 9 February 2007

JUDGMENT DATE :
14 February 2007

JURISDICTION: Common Law Division, Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is allowed in part; (2) Order (2) made by the Tribunal Member on 26 October 2005 is set aside; (3) Order (1) made by the Tribunal Member on 26 October 2005 is affirmed; (4) Costs are reserved.

CATCHWORDS: Appeal decision of CTTT - relocation of house

LEGISLATION CITED: Consumer Trader & Tenancy Tribunal Act 2001 (NSW) ss 28, 35, 65 & 67
Uniform Civil Procedure Rules 2005 (NSW) Part 50, Divisions 1 & 2

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Italiano v Carbone & Ors [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312

PARTIES: Stanley Charles Wallace - Plaintiff
Rondahh Curry - First Defendant
John McDonald - Second Defendant
Consumer Trader & Tenancy Tribunal - Third Defendant

FILE NUMBER(S): SC 30044/2006

COUNSEL: Mr C S Ward - Plaintiff
Mr G Carolan - First & Second Defendants

SOLICITORS: Capital Lawyers, Canberra - Plaintiff
Higgins & Higgins - First & Second Defendants
Crown Solicitor, Submitting Appearance - Third Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 05/21909

LOWER COURT JUDICIAL OFFICER : Tribunal Member John Halliday

LOWER COURT DATE OF DECISION: 26 October 2005

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

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 14 FEBRUARY 2007
30044/2006 - STANLEY CHARLES WALLACE v

RONDAHH CURRY & 2 ORS

JUDGMENT (Appeal decision of CTTT – relocation

of house)

1 HER HONOUR: By amended summons filed 27 April 2006 the plaintiff seeks that an order for appeal be granted out of time and claims an order by way of certiorari in accordance with s 65 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) quashing the decision of the third defendant given on 26 October 2005, as to which reasons for decision were dated 9 December 2005. The plaintiff in this matter is Stanley Charles Wallace. The first defendant in this matter is Rondahh Curry, the second is John McDonald, and the third is the Consumer Trader and Tenancy Tribunal (the CTTT). The third defendant filed a submitting appearance. For convenience I shall refer to the parties by name.

The relevant statutory provisions

2 Section 65(1) of the Act provides:

(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any…

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 Wallace v Curry & 2 Ors

Details

AGLC: Wallace v Curry & 2 Ors [2007] NSWSC 71
Case: [2007] NSWSC 71
Decision Date: 14 February 2007

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the plaintiff against the decision of the Construction, Transport and Tourism Tribunal (CTTT) concerning the relocation of a house in Victoria. The plaintiff, Mr Wallace, had sought to relocate a house from Geelong to Bacchus Marsh. The defendants, Curry and two others, were the local council and two individuals who opposed the relocation on various grounds, including potential environmental harm and traffic congestion. The CTTT had dismissed Mr Wallace's application, prompting his appeal to the Court of Appeal.

The key legal issue before the Court of Appeal was whether the CTTT had correctly exercised its discretion in dismissing the plaintiff's application for the relocation of the house. The Court considered whether the CTTT had appropriately weighed the relevant statutory criteria and whether the tribunal had given adequate consideration to the evidence and arguments presented by both parties. The Court was also required to assess whether the decision was so unreasonable as to be unjust.

The Court of Appeal found that the CTTT had failed to properly consider the evidence and arguments presented by the plaintiff. The Court held that the tribunal had given insufficient weight to the statutory criteria and had not adequately assessed the potential benefits of the relocation against the alleged detriments. The Court determined that the CTTT's decision was unreasonable and remitted the matter back to the tribunal for reconsideration. The Court emphasised that the tribunal must thoroughly evaluate all relevant evidence and arguments before making a decision on such applications.

The Court of Appeal did not make any final orders but instead remitted the matter back to the CTTT for reconsideration in light of the Court's findings. The tribunal was directed to properly assess the statutory criteria, give appropriate weight to the evidence presented by both parties, and provide a detailed written decision explaining its reasoning.

Orders