Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

A 'no evidence' ground constitutes a question of law for the purposes of s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). In this case, the Tribunal’s finding that extension of time notices had been served was made in the absence of material properly before it. This error of law justified appellate intervention and the orders of the primary judge should be restored.

Parties
Appellants: Peter Kostas & Anor; First Respondent: HIA Insurance Services Pty Limited T/as Home Owners Warranty; Second Respondent: Second Respondent
Jurisdiction
Australia
Judgment Date
29 September 2010
Procedural Posture
Appeal / High Court of Australia Judgment on Appeal From Supreme Court of New South Wales
Outcome
Appeal allowed.
Legal Topics
Appellate Jurisdiction, Questions of Law Vs Fact, Statutory Interpretation, Consumer, Trader and Tenancy Tribunal Act 2001 (nsw), Home Building Act 1989 (nsw), Jurisdiction and Powers of Supreme Court, 'no Evidence' Ground of Appeal
Administrative Law Contract Law Civil Procedure Appellate Jurisdiction Questions of Law Vs Fact Statutory Interpretation Consumer, Trader and Tenancy Tribunal Act 2001 (nsw) Home Building Act 1989 (nsw) +2 more

Case Brief

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Parties

Peter Kostas & Anor

Appellants

HIA Insurance Services Pty Limited T/as Home Owners Warranty

First Respondent

Second Respondent

Second Respondent

Procedural Posture

Appeal / High Court of Australia Judgment on Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether an appeal lies to the Supreme Court of NSW under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) in respect of a 'no evidence' ground
  2. 2 Whether the Tribunal made a critical finding of fact without any evidence
  3. 3 Whether the Tribunal's finding as to service of extension of time notices was unsupported

Ratio Decidendi

A 'no evidence' ground constitutes a question of law for the purposes of s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). In this case, the Tribunal’s finding that extension of time notices had been served was made in the absence of material properly before it. This error of law justified appellate intervention and the orders of the primary judge should be restored.

Court Disposition

Appeal allowed.

Orders

  • Appeal allowed.
  • Set aside the order of the Court of Appeal of the Supreme Court of New South Wales made on 16 September 2009 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.