Chowdhury v Hossain [2017] NSWCATAP 109

Chowdhury v Hossain [2017] NSWCATAP 109

The builder was notified of the 8 February 2017 hearing only by email, despite there being no evidence that he consented to electronic service and no direction authorising that mode of service. Because the notice was not served in accordance with cl 13(2) of the Civil and Administrative Tribunal Rules 2014 and the builder was not in fact aware of the hearing, he was denied a reasonable opportunity to be heard. That denial of procedural fairness could have affected factual issues about the work remaining and the reasonable cost to complete it, so the Tribunal's decision had to be set aside and remitted for rehearing.

Jurisdiction
Australia
Judgment Date
17 May 2017
Procedural Posture
Internal Appeal / Appeal Panel Hearing From a Consumer and Commercial Division Decision
Outcome
Appeal allowed; Tribunal order set aside; matter remitted for rehearing.
Legal Topics
['procedural Fairness' 'notice of Hearing' 'electronic Service' 'renewal of Proceedings' 'internal Appeal']
['civil Procedure' 'administrative Law' 'home Building'] ['procedural Fairness' 'notice of Hearing' 'electronic Service' 'renewal of Proceedings' 'internal Appeal']

Case Brief

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Procedural Posture

Internal Appeal / Appeal Panel Hearing From a Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether the builder was properly notified of the hearing on 8 February 2017.' 'Whether failure to notify the builder of the hearing denied procedural fairness.' "Whether the Tribunal's decision should be set aside and the matter remitted for rehearing."]

Ratio Decidendi

The builder was notified of the 8 February 2017 hearing only by email, despite there being no evidence that he consented to electronic service and no direction authorising that mode of service. Because the notice was not served in accordance with cl 13(2) of the Civil and Administrative Tribunal Rules 2014 and the builder was not in fact aware of the hearing, he was denied a reasonable opportunity to be heard. That denial of procedural fairness could have affected factual issues about the work remaining and the reasonable cost to complete it, so the Tribunal's decision had to be set aside and remitted for rehearing.

Court Disposition

Appeal allowed; Tribunal order set aside; matter remitted for rehearing.

Orders

  • ['The appeal is allowed.' 'The order made by the Tribunal on 8 February 2017 is set aside.' 'The matter is remitted to the Tribunal for rehearing.']