Lay v Soueidan [2023] NSWCATAP 310

Lay v Soueidan [2023] NSWCATAP 310

The Tribunal erred in law by failing to address the necessary discretionary factors, including whether the respondent had an arguable defence; as no such defence was established and ample opportunity to participate was given to the respondent, it would not be unjust to let the original payment order stand.

Jurisdiction
Australia
Judgment Date
23 November 2023
Procedural Posture
Appeal / Judgment of Appeal Panel
Outcome
Appeal allowed. Order setting aside default payment order is set aside. Original payment order varied and restored.
Legal Topics
['appeal' 'set Aside Decision' 'decision in Absence of Party' 'australian Consumer Law' 'limitation Periods']
['civil Procedure' 'consumer Law' 'building and Construction'] ['appeal' 'set Aside Decision' 'decision in Absence of Party' 'australian Consumer Law' 'limitation Periods']

Case Brief

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Procedural Posture

Appeal / Judgment of Appeal Panel

Legal Issues

  1. 1 ["Whether Tribunal's reasons for setting aside default payment order were adequate" 'Whether conditions for set aside under Regulation 9 Civil and Administrative Tribunal Regulation 2022 (NSW) were fulfilled' 'Whether the respondent (Soueidan) had an arguable defence to the building claim' 'Whether a real likelihood of injustice would arise if the original default judgment stood']

Ratio Decidendi

The Tribunal erred in law by failing to address the necessary discretionary factors, including whether the respondent had an arguable defence; as no such defence was established and ample opportunity to participate was given to the respondent, it would not be unjust to let the original payment order stand.

Court Disposition

Appeal allowed. Order setting aside default payment order is set aside. Original payment order varied and restored.

Orders

  • ['The appeal is allowed.' 'The order made by the Tribunal on 23 August 2023 is set aside.' 'The order made by the Tribunal on 4 August 2023 is varied so as to require the respondent to pay the appellant $15,250 within 7 days of the decision’s issue.']