Gengiz v Fishburn [2014] NSWCATAP 96

Gengiz v Fishburn [2014] NSWCATAP 96

The Appeal Panel held that the Tribunal did not make an error of law or deny procedural fairness. The Tribunal considered the fact that the vehicle had been registered and that blue and pink slips had issued, and it was open to it to prefer the Gaudie expert evidence and find that the conversion work was defective despite the blue slip. The contents of the blue slip were not determinative of whether the work was performed in a proper and workmanlike manner. The summons issue did not establish procedural unfairness because the appellant made no adjournment application, made no sufficient enquiry about the summons, and the blue slip would not have altered the outcome. Leave was refused...

Jurisdiction
Australia
Judgment Date
04 December 2014
Procedural Posture
Internal Appeal Concerning Motor Vehicle Breach of Contract Claim / Application for Leave to Appeal and Appeal From Decision of the Tribunal's Consumer and Commercial Division
Outcome
Leave to appeal refused; appeal otherwise dismissed; no order as to costs.
Legal Topics
['breach of Contract' 'proper and Workmanlike Manner' 'leave to Appeal' 'question of Law' 'procedural Fairness' 'fresh Evidence' 'blue Slip' 'costs']
['contract Law' 'consumer Law' 'administrative Law' 'motor Vehicles'] ['breach of Contract' 'proper and Workmanlike Manner' 'leave to Appeal' 'question of Law' 'procedural Fairness' 'fresh Evidence' 'blue Slip' 'costs']

Case Brief

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Procedural Posture

Internal Appeal Concerning Motor Vehicle Breach of Contract Claim / Application for Leave to Appeal and Appeal From Decision of the Tribunal's Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the conversion work was not performed in a proper and workmanlike manner despite the issue of a blue slip and registration of the vehicle.' 'Whether the Tribunal ignored relevant material by not considering the specific contents of the blue slip.' 'Whether proceeding with the hearing despite the summons issue denied the appellant procedural fairness.' 'Whether leave to appeal should be granted because the decision was against the weight of the evidence or because significant new evidence had arisen.' 'Whether special circumstances warranted an order for costs.']

Ratio Decidendi

The Appeal Panel held that the Tribunal did not make an error of law or deny procedural fairness. The Tribunal considered the fact that the vehicle had been registered and that blue and pink slips had issued, and it was open to it to prefer the Gaudie expert evidence and find that the conversion work was defective despite the blue slip. The contents of the blue slip were not determinative of whether the work was performed in a proper and workmanlike manner. The summons issue did not establish procedural unfairness because the appellant made no adjournment application, made no sufficient enquiry about the summons, and the blue slip would not have altered the outcome. Leave was refused...

Court Disposition

Leave to appeal refused; appeal otherwise dismissed; no order as to costs.

Orders

  • ['The appeal is dismissed.' 'No order as to costs.']