Shal-Houb v Assaf [2002] NSWSC 912

Shal-Houb v Assaf [2002] NSWSC 912

Clause 8 of Sch 6 to the Consumer, Trader and Tenancy Tribunal Act 2001 required the plaintiff's unresolved rehearing application to be dealt with as if it had been made under the new Act. Because the amount in issue exceeded $25,000, s 68(13) made the application incompetent, and the Chairperson was correct to refuse it. The application was also considerably out of time and did not disclose qualifying new evidence or substantial injustice. The appeal therefore failed.

Jurisdiction
Australia
Judgment Date
25 October 2002
Procedural Posture
Administrative Law Appeal / Summons Seeking Remittal to the Consumer, Trader and Tenancy Tribunal for Rehearing and Redetermination, and Stay of Execution
Outcome
Appeal fails; Summons dismissed with costs; Stay of Execution dissolved.
Legal Topics
['consumer, Trader and Tenancy Tribunal' 'fair Trading Tribunal' 'application for Rehearing' 'transitional Provisions' 'jurisdictional Monetary Limit' 'stay of Execution']
['administrative Law' 'statutory Construction' 'home Building'] ['consumer, Trader and Tenancy Tribunal' 'fair Trading Tribunal' 'application for Rehearing' 'transitional Provisions' 'jurisdictional Monetary Limit' 'stay of Execution']

Case Brief

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Procedural Posture

Administrative Law Appeal / Summons Seeking Remittal to the Consumer, Trader and Tenancy Tribunal for Rehearing and Redetermination, and Stay of Execution

Legal Issues

  1. 1 ["Whether cl 8 of Sch 6 to the Consumer, Trader and Tenancy Tribunal Act 2001 required the plaintiff's pre-commencement third rehearing application to be dealt with as if made under the new Act, including s 68(13)." 'Whether the Chairperson was correct to refuse the rehearing application because the amount claimed or disputed was more than $25,000.' 'Whether the rehearing application was out of time under cl 19(1) of the Fair Trading Tribunal Regulation 1999.' 'Whether the rehearing application disclosed a substantial miscarriage of justice within s 63(1) of the Fair Trading Tribunal Act 1998 or s 68(2) of the Consumer, Trader and Tenancy Tribunal Act 2001.']

Ratio Decidendi

Clause 8 of Sch 6 to the Consumer, Trader and Tenancy Tribunal Act 2001 required the plaintiff's unresolved rehearing application to be dealt with as if it had been made under the new Act. Because the amount in issue exceeded $25,000, s 68(13) made the application incompetent, and the Chairperson was correct to refuse it. The application was also considerably out of time and did not disclose qualifying new evidence or substantial injustice. The appeal therefore failed.

Court Disposition

Appeal fails; Summons dismissed with costs; Stay of Execution dissolved.

Orders

  • ['The Summons is dismissed with costs.' 'The Stay of Execution ordered on 1 October 2002 is dissolved.' 'Each party is to pay their own costs of the proceedings of 1 October.']