ZIVKOVIC v STYLE CRAFT BLINDS & ORS [2002] NSWSC 1024

ZIVKOVIC v STYLE CRAFT BLINDS & ORS [2002] NSWSC 1024

The appellant was not denied natural justice in relation to the consequential damage, negligence and duty of care issues because those issues were adopted by the parties, understood by the appellant, supported by expert material tendered on his instructions, and substantially dealt with by the Tribunal. However, the Tribunal failed adequately to deal with the original claim concerning the fitness of the awning, its attachment, removal and reimbursement, and the appellant was not directed or guided to address that issue. That failure deprived the appellant of the hearing to which he was entitled and justified certiorari quashing the decision in part and remittal for a hearing de novo...

Jurisdiction
Australia
Judgment Date
01 November 2002
Procedural Posture
Appeal From the Fair Trading Tribunal, Home Building Division by Way of Summons / Judgment on Appeal
Outcome
Appeal allowed; decision of the Fair Trading Tribunal quashed in part; matter remitted for a hearing de novo limited to removal of the awning and reimbursement of its cost.
Legal Topics
['appeal From Tribunal' 'denial of Natural Justice' 'certiorari' 'fair Trading Tribunal Procedure' 'fitness of Awning' 'consequential Property Damage']
['administrative Law' 'procedural Fairness' 'consumer and Home Building Disputes'] ['appeal From Tribunal' 'denial of Natural Justice' 'certiorari' 'fair Trading Tribunal Procedure' 'fitness of Awning' 'consequential Property Damage']

Case Brief

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Procedural Posture

Appeal From the Fair Trading Tribunal, Home Building Division by Way of Summons / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the appellant was denied natural justice or procedural fairness by the Fair Trading Tribunal.' 'Whether the Tribunal failed to determine the original issue of the fitness of the awning for its intended use and the requested remedies of removal and refund.' "Whether complaints about the Tribunal's handling of the consequential property damage claim amounted to denial of natural justice rather than issues of law or fact not available on the appeal." 'Whether prerogative relief in the nature of certiorari should be granted under the Fair Trading Tribunal Act (1998).']

Ratio Decidendi

The appellant was not denied natural justice in relation to the consequential damage, negligence and duty of care issues because those issues were adopted by the parties, understood by the appellant, supported by expert material tendered on his instructions, and substantially dealt with by the Tribunal. However, the Tribunal failed adequately to deal with the original claim concerning the fitness of the awning, its attachment, removal and reimbursement, and the appellant was not directed or guided to address that issue. That failure deprived the appellant of the hearing to which he was entitled and justified certiorari quashing the decision in part and remittal for a hearing de novo...

Court Disposition

Appeal allowed; decision of the Fair Trading Tribunal quashed in part; matter remitted for a hearing de novo limited to removal of the awning and reimbursement of its cost.

Orders

  • ['That the appeal be allowed;' 'That the record of the second respondent dated 16 October 2000 in matter number BU 2000/05763 be brought up to this Court;' 'That the decision of the second respondent dated 16 October 2000 in matter number BU 2000/05763 be quashed in so far as it relates to the matters contained in...