The Owners Strata Plan 72041 v Cosmopolitan Constructions Pty Ltd [2011] NSWSC 937

The Owners Strata Plan 72041 v Cosmopolitan Constructions Pty Ltd [2011] NSWSC 937

The Tribunal had power under s 28(5)(g) of the Consumer, Trader and Tenancy Tribunal Act 2001 to dismiss the proceedings when the plaintiff failed to attend the initial hearing, and that original dismissal was not itself a denial of procedural fairness because the non-attendance resulted from the plaintiff's solicitor's mistake. However, the plaintiff's solicitor immediately attended the Tribunal, explained the error and sent a letter seeking relisting, and the Tribunal failed to acknowledge, consider or respond to that reinstatement request. That failure was disproportionate and denied the plaintiff procedural fairness, so the plaintiff was entitled to relief.

Jurisdiction
Australia
Judgment Date
26 August 2011
Procedural Posture
Supreme Court Proceedings Seeking Declaratory and Prerogative Relief in Respect of a Consumer, Trader and Tenancy Tribunal Dismissal / Principal Judgment After Hearing of Amended Summons; Further Submissions Invited on the Appropriate Form of Relief and Costs
Outcome
The plaintiff was denied procedural fairness and was entitled to relief; the argument that the Tribunal lacked power to dismiss at an initial or directions hearing was rejected.
Legal Topics
['procedural Fairness' 'consumer, Trader and Tenancy Tribunal Procedure' 'dismissal for Non Attendance' 'jurisdiction and Power Under S 28(5)(g)' 'certiorari and Declaratory Relief']
['procedure' 'administrative Law' 'home Building'] ['procedural Fairness' 'consumer, Trader and Tenancy Tribunal Procedure' 'dismissal for Non Attendance' 'jurisdiction and Power Under S 28(5)(g)' 'certiorari and Declaratory Relief']

Case Brief

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Procedural Posture

Supreme Court Proceedings Seeking Declaratory and Prerogative Relief in Respect of a Consumer, Trader and Tenancy Tribunal Dismissal / Principal Judgment After Hearing of Amended Summons; Further Submissions Invited on the Appropriate Form of Relief and Costs

Legal Issues

  1. 1 ['Whether the plaintiff was denied procedural fairness when the Tribunal dismissed its application after neither party appeared at the initial hearing.' "Whether the plaintiff was denied procedural fairness when the Tribunal did not respond to or deal with the plaintiff's solicitor's immediate request to relist or reinstate the proceedings." 'Whether s 28(5)(g) of the Consumer, Trader and Tenancy Tribunal Act 2001 empowered the Tribunal to dismiss proceedings at a directions or initial hearing rather than only at a final hearing.']

Ratio Decidendi

The Tribunal had power under s 28(5)(g) of the Consumer, Trader and Tenancy Tribunal Act 2001 to dismiss the proceedings when the plaintiff failed to attend the initial hearing, and that original dismissal was not itself a denial of procedural fairness because the non-attendance resulted from the plaintiff's solicitor's mistake. However, the plaintiff's solicitor immediately attended the Tribunal, explained the error and sent a letter seeking relisting, and the Tribunal failed to acknowledge, consider or respond to that reinstatement request. That failure was disproportionate and denied the plaintiff procedural fairness, so the plaintiff was entitled to relief.

Court Disposition

The plaintiff was denied procedural fairness and was entitled to relief; the argument that the Tribunal lacked power to dismiss at an initial or directions hearing was rejected.

Orders

  • ['The parties were to be given an opportunity to consider the reasons and make brief submissions on the appropriate form of relief.' 'A time for those submissions was to be arranged in consultation with the Associate, conveniently to the Court and the parties.' 'The Court would also hear the parties on costs if...