Merrick v Hines [2021] NSWCATAP 108

Merrick v Hines [2021] NSWCATAP 108

The Appeal Panel refused an extension of time because, although the 26-day delay was explained by the appellant's set aside application and was not substantial, the appeal had no prospects of success. The appellant was not denied procedural fairness: he had notice of the telephone hearing, the Member attempted to call him twice, it was incumbent on him to be available and to contact the Registry promptly if not called, and his failure to participate and to provide documents resulted from his own dilatory conduct. He did not identify unavailable documents or show that any further evidence was not reasonably available or would have affected the outcome. Leave to appeal was refused because...

Jurisdiction
Australia
Judgment Date
29 April 2021
Procedural Posture
Home Building Appeal / Appeal Panel Determination of Extension of Time, Leave to Appeal and Appeal
Outcome
Extension of time refused; leave to appeal refused; appeal dismissed; stay order lifted.
Legal Topics
['procedural Fairness' 'appeal on a Question of Law' 'extension of Time' 'leave to Appeal' 'reasonable Opportunity to Be Heard' 'hearing in Absence of a Party']
['civil and Administrative Tribunal Procedure' 'home Building Law'] ['procedural Fairness' 'appeal on a Question of Law' 'extension of Time' 'leave to Appeal' 'reasonable Opportunity to Be Heard' 'hearing in Absence of a Party']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Home Building Appeal / Appeal Panel Determination of Extension of Time, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted for the making of the appeal.' 'Whether the appellant was denied procedural fairness because the Tribunal determined the matter in his absence and he said he did not receive a call on the hearing day.' 'Whether the appellant was denied a reasonable opportunity to provide evidence and documents.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.']

Ratio Decidendi

The Appeal Panel refused an extension of time because, although the 26-day delay was explained by the appellant's set aside application and was not substantial, the appeal had no prospects of success. The appellant was not denied procedural fairness: he had notice of the telephone hearing, the Member attempted to call him twice, it was incumbent on him to be available and to contact the Registry promptly if not called, and his failure to participate and to provide documents resulted from his own dilatory conduct. He did not identify unavailable documents or show that any further evidence was not reasonably available or would have affected the outcome. Leave to appeal was refused because...

Court Disposition

Extension of time refused; leave to appeal refused; appeal dismissed; stay order lifted.

Orders

  • ['An extension of time for the making of the appeal is refused.' 'Leave to appeal is refused.' 'The appeal is dismissed.' 'The stay order made by the Appeal Panel on 14 August 2020 is lifted.']