Fam v Taha [2020] NSWCATAP 3

Fam v Taha [2020] NSWCATAP 3

The Appeal Panel allowed the appeal because the Tribunal asked the wrong question by deciding that s 60 of the Australian Consumer Law (NSW) 2010 had been breached, when the respondents' case was that an oral contract provided for a refundable deposit after cancellation. The Tribunal made no findings about the contract's terms and conditions, particularly the consequences of cancellation, which was a central issue. Material filed on appeal also cast doubt on whether the appellant was the contracting party, making remittal with new evidence appropriate and justifying joinder of Highline Event Centre Pty Ltd.

Jurisdiction
Australia
Judgment Date
10 January 2020
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer Claim in the Consumer and Commercial Division / Appeal Panel Decision
Outcome
Appeal allowed; order for payment set aside; proceedings remitted for rehearing with new evidence allowed; Highline Event Centre Pty Ltd joined as a respondent in the remitted proceedings.
Legal Topics
['refund of Wedding Reception Deposit' 'identity of Correct Respondent' 'australian Consumer Law Guarantee as to Due Care and Skill' 'internal Appeal on Question of Law' 'leave to Appeal' 'remittal for Rehearing' 'joinder of Party']
['consumer Law' 'contract Law' 'civil Procedure' 'tribunal Appeals'] ['refund of Wedding Reception Deposit' 'identity of Correct Respondent' 'australian Consumer Law Guarantee as to Due Care and Skill' 'internal Appeal on Question of Law' 'leave to Appeal' 'remittal for Rehearing' 'joinder of Party']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer Claim in the Consumer and Commercial Division / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred by considering breach of s 60 of the Australian Consumer Law (NSW) 2010 rather than whether the contract terms provided for refund of the deposit on cancellation.' 'Whether the appellant was correctly named as the contracting party and respondent.' 'Whether leave to appeal should be granted or the appeal allowed where the Tribunal made no central finding about the terms and conditions of the contract.' 'Whether Highline Event Centre Pty Ltd should be joined in remitted proceedings.']

Ratio Decidendi

The Appeal Panel allowed the appeal because the Tribunal asked the wrong question by deciding that s 60 of the Australian Consumer Law (NSW) 2010 had been breached, when the respondents' case was that an oral contract provided for a refundable deposit after cancellation. The Tribunal made no findings about the contract's terms and conditions, particularly the consequences of cancellation, which was a central issue. Material filed on appeal also cast doubt on whether the appellant was the contracting party, making remittal with new evidence appropriate and justifying joinder of Highline Event Centre Pty Ltd.

Court Disposition

Appeal allowed; order for payment set aside; proceedings remitted for rehearing with new evidence allowed; Highline Event Centre Pty Ltd joined as a respondent in the remitted proceedings.

Orders

  • ['The appeal is allowed.' 'Order 2 made by the Tribunal on 26 September 2019 in proceedings GEN 19/26388 is set aside.' 'The proceedings are remitted to the Tribunal for rehearing, with new evidence allowed.' 'Highline Event Centre Pty Ltd is joined as a respondent in the remitted proceedings.']