Thiessen v Poolsurf QLD Pty Ltd [2015] NSWCATAP 250

Thiessen v Poolsurf QLD Pty Ltd [2015] NSWCATAP 250

The appeal turned on a crucial factual conflict about how the respondent performed the cleaning work. The first instance decision did not make specific findings on whether the appellant's account of high pressure hosing or water blasting, the respondent's account, or neither account should be accepted. Because that omission was central to the conclusion that the evidence about causation was too conflicting, the appellant may have suffered a substantial miscarriage of justice on the basis that the decision was not fair and equitable. Leave was therefore granted, the appeal upheld, and both applications remitted for rehearing.

Jurisdiction
Australia
Judgment Date
25 November 2015
Procedural Posture
Appeal From Consumer and Commercial Division Decision / Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal upheld; orders under appeal set aside; applications remitted for rehearing.
Legal Topics
['leave to Appeal' 'substantial Miscarriage of Justice' 'fair and Equitable Decision' 'decision Against the Weight of Evidence' 'failure to Make Findings of Fact']
['civil Procedure' 'consumer and Commercial' 'tribunal Appeals'] ['leave to Appeal' 'substantial Miscarriage of Justice' 'fair and Equitable Decision' 'decision Against the Weight of Evidence' 'failure to Make Findings of Fact']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Decision / Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 80(2)(b) of the Civil and Administrative Tribunal Act NSW 2013 and cl 12 of Sch 4 of the Act.' 'Whether the appellant may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable or was against the weight of evidence.' 'Whether the Tribunal at first instance failed to make necessary findings about how the respondent undertook the acid washing or cleaning work, including whether a high pressure hose or water blasting was used.' "Whether the orders dismissing the appellant's claim and requiring payment of $1,200.00 to the respondent should be set aside and the applications remitted for rehearing."]

Ratio Decidendi

The appeal turned on a crucial factual conflict about how the respondent performed the cleaning work. The first instance decision did not make specific findings on whether the appellant's account of high pressure hosing or water blasting, the respondent's account, or neither account should be accepted. Because that omission was central to the conclusion that the evidence about causation was too conflicting, the appellant may have suffered a substantial miscarriage of justice on the basis that the decision was not fair and equitable. Leave was therefore granted, the appeal upheld, and both applications remitted for rehearing.

Court Disposition

Leave to appeal granted; appeal upheld; orders under appeal set aside; applications remitted for rehearing.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'The orders made on 10 July 2015 in applications HB 15/03370 and HB 15/10573 are set aside.' 'Applications HB 15/03370 and HB 15/10573 are remitted for rehearing.' 'The parties are at liberty to file and serve further evidence (in addition to the evidence previously filed...