Olsen v Lee [2015] NSWCATAP 17

Olsen v Lee [2015] NSWCATAP 17

Leave was refused because none of the appellant's grounds, individually or cumulatively, demonstrated a substantial miscarriage of justice or any basis warranting leave. The costs application was not a pending home building proceeding or effective interlocutory application in the earlier HB proceedings, because the appellant had been removed as a party and the HB proceedings had effectively been dismissed; any costs application needed to be made in those proceedings. The Appeal Panel found no material unfairness from the jurisdiction issue or refusal of representation, no basis for the asserted out-of-time ground, and no error in the frivolous and vexatious conclusion.

Jurisdiction
Australia
Judgment Date
08 January 2015
Procedural Posture
Application for Leave to Appeal and Appeal From a Consumer and Commercial Division Decision Dismissing a Home Building Costs Application / Appeal Determined on the Papers
Outcome
The application for leave to appeal was refused and dismissed; the appeal was dismissed; no order as to costs.
Legal Topics
['leave to Appeal' 'substantial Miscarriage of Justice' 'tribunal Jurisdiction' 'costs in Dismissed Proceedings' 'legal Representation' 'frivolous and Vexatious Proceedings']
['civil and Administrative Tribunal Appeals' 'home Building' 'costs'] ['leave to Appeal' 'substantial Miscarriage of Justice' 'tribunal Jurisdiction' 'costs in Dismissed Proceedings' 'legal Representation' 'frivolous and Vexatious Proceedings']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From a Consumer and Commercial Division Decision Dismissing a Home Building Costs Application / Appeal Determined on the Papers

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s80 of the Civil and Administrative Tribunal Act 2013.' "Whether the Tribunal had jurisdiction to hear the appellant's new application for costs incurred in earlier HB proceedings." 'Whether the appellant was denied a reasonable time to respond to the issue of jurisdiction.' 'Whether refusing the appellant leave to be represented by counsel caused unfairness or error.' 'Whether the Tribunal erred by treating the application as out of time.' 'Whether the Tribunal erred in concluding that the application was frivolous and vexatious.' 'Whether costs should be ordered in favour of the respondents on the appeal.']

Ratio Decidendi

Leave was refused because none of the appellant's grounds, individually or cumulatively, demonstrated a substantial miscarriage of justice or any basis warranting leave. The costs application was not a pending home building proceeding or effective interlocutory application in the earlier HB proceedings, because the appellant had been removed as a party and the HB proceedings had effectively been dismissed; any costs application needed to be made in those proceedings. The Appeal Panel found no material unfairness from the jurisdiction issue or refusal of representation, no basis for the asserted out-of-time ground, and no error in the frivolous and vexatious conclusion.

Court Disposition

The application for leave to appeal was refused and dismissed; the appeal was dismissed; no order as to costs.

Orders

  • ['The application for leave to appeal is dismissed.' 'The appeal is otherwise dismissed.' 'There is to be no order as to costs.']