Mark Lewis v Trot Pty Ltd [2015] NSWCATAP 118

Mark Lewis v Trot Pty Ltd [2015] NSWCATAP 118

The appellant's uncontradicted evidence established that he failed to attend the substantive hearing because notice was sent through solicitors who had ceased to act after transfer to the Tribunal and he was away when the notice was mailed to him. In those circumstances he was unfairly deprived of the opportunity to present his case, and there was a real likelihood of a substantial miscarriage of justice if the refusal to set aside remained. The requirements of cl 9(1)(b) were satisfied because the substantive decision was made in his absence and his case was not adequately put to the Tribunal.

Jurisdiction
Australia
Judgment Date
24 June 2015
Procedural Posture
Internal Appeal / Appeal From Refusal of Set Aside Application
Outcome
The appeal is allowed.
Legal Topics
['internal Appeals' 'setting Aside Decisions' 'procedural Fairness' 'absence From Hearing' 'residential Building Work']
['civil Procedure' 'consumer and Commercial' 'home Building'] ['internal Appeals' 'setting Aside Decisions' 'procedural Fairness' 'absence From Hearing' 'residential Building Work']

Case Brief

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Procedural Posture

Internal Appeal / Appeal From Refusal of Set Aside Application

Legal Issues

  1. 1 ['Whether the decision refusing the set aside application was an internally appealable decision.' 'Whether leave to appeal was required.' 'Whether the appellant was denied procedural fairness because the substantive decision was made in his absence and his case was not adequately put to the Tribunal.' 'Whether the set aside decision and the substantive decision should be set aside and the proceedings remitted.']

Ratio Decidendi

The appellant's uncontradicted evidence established that he failed to attend the substantive hearing because notice was sent through solicitors who had ceased to act after transfer to the Tribunal and he was away when the notice was mailed to him. In those circumstances he was unfairly deprived of the opportunity to present his case, and there was a real likelihood of a substantial miscarriage of justice if the refusal to set aside remained. The requirements of cl 9(1)(b) were satisfied because the substantive decision was made in his absence and his case was not adequately put to the Tribunal.

Court Disposition

The appeal is allowed.

Orders

  • ['The appeal is allowed' 'The set aside decision made on 22 September 2014 is set aside' 'The substantive decision made on 26 August 2014 is set aside' 'The proceedings are remitted to the Tribunal for hearing']