Birch Lang & Co Pty Ltd v Burston [2020] NSWCATAP 191

Birch Lang & Co Pty Ltd v Burston [2020] NSWCATAP 191

The Tribunal failed to accord procedural fairness by not clearly identifying nor providing the opportunity for the appellant’s director’s statements and assertions in the hearing to be treated as evidence, which precluded proper consideration of the Agent’s defence; this deficiency constituted an error of law warranting the setting aside and remittal for rehearing, except for that part of the order concerning uncontested management fees.

Parties
Appellant: Birch Lang & Co Pty Ltd; Respondent: Jo-Ellen Burston
Jurisdiction
Australia
Judgment Date
16 September 2020
Procedural Posture
Appeal / Decision on Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Appeals allowed in part (AP 20/16622) and in full (AP 20/16626); orders for costs set aside; matters remitted for reconsideration, except for uncontested amount.
Legal Topics
Procedural Fairness, Hearing Rule, Agency Agreements, Management Fees, Tribunal Procedure
Administrative Law Property Law Procedural Fairness Hearing Rule Agency Agreements Management Fees Tribunal Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Birch Lang & Co Pty Ltd

Appellant

Jo-Ellen Burston

Respondent

Procedural Posture

Appeal / Decision on Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 Whether the Tribunal denied procedural fairness by failing to identify whether the appellant's director's statements and assertions during the hearing were to be treated as evidence and by failing to provide an opportunity for them to be treated as evidence
  2. 2 Whether the Tribunal failed to provide adequate reasons for its decision

Ratio Decidendi

The Tribunal failed to accord procedural fairness by not clearly identifying nor providing the opportunity for the appellant’s director’s statements and assertions in the hearing to be treated as evidence, which precluded proper consideration of the Agent’s defence; this deficiency constituted an error of law warranting the setting aside and remittal for rehearing, except for that part of the order concerning uncontested management fees.

Court Disposition

Appeals allowed in part (AP 20/16622) and in full (AP 20/16626); orders for costs set aside; matters remitted for reconsideration, except for uncontested amount.

Orders

  • AP 20/16622: The appeal is allowed in part.
  • AP 20/16622: Order 1 made in COM 19/53190 on 13 March 2020 set aside and substituted: 'Birch Lang & Co Pty Ltd is to pay Jo-Ellen Burston the amount of $5,704.78, within 14 days of the date of these orders'.