Cumming v Deadman [2022] NSWCATAP 43

Cumming v Deadman [2022] NSWCATAP 43

The Tribunal denied the appellants procedural fairness by amending the 28 September 2021 orders on the respondent's request without ensuring the appellants had notice of the request and without giving them an opportunity to be heard. Because the material did not establish that a different result was impossible, and there was a possibility that the alleged agreement was not made or that the extended plinth requirement would be detrimental to the appellants' land, practical injustice was shown. The amended orders of 18 October 2021 were therefore set aside and the variation application remitted.

Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Amending Orders Under S 63 of the Civil and Administrative Tribunal Act 2013 (nsw) / Appeal Panel Decision
Outcome
Appeal allowed.
Legal Topics
['nsw Civil and Administrative Tribunal' 'slip Rule' 'amendment of Orders' 'procedural Fairness' 'natural Justice' 'opportunity to Be Heard' 'practical Injustice' 'dividing Fence']
['administrative Law' 'civil Procedure' 'neighbour Disputes'] ['nsw Civil and Administrative Tribunal' 'slip Rule' 'amendment of Orders' 'procedural Fairness' 'natural Justice' 'opportunity to Be Heard' 'practical Injustice' 'dividing Fence']

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Procedural Posture

Appeal From NSW Civil and Administrative Tribunal Consumer and Commercial Division Decision Amending Orders Under S 63 of the Civil and Administrative Tribunal Act 2013 (nsw) / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal denied the appellants procedural fairness by amending orders under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) without notice of the respondent's request and without giving them an opportunity to be heard." 'Whether there was a non-fanciful possibility of a different outcome had procedural fairness been afforded, such that the amended orders should be set aside and the variation application remitted.']

Ratio Decidendi

The Tribunal denied the appellants procedural fairness by amending the 28 September 2021 orders on the respondent's request without ensuring the appellants had notice of the request and without giving them an opportunity to be heard. Because the material did not establish that a different result was impossible, and there was a possibility that the alleged agreement was not made or that the extended plinth requirement would be detrimental to the appellants' land, practical injustice was shown. The amended orders of 18 October 2021 were therefore set aside and the variation application remitted.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' "Set aside the Tribunal's orders of 18 October 2021, and in lieu thereof re-instate the Tribunal's orders of 28 September 2021." "Remit the respondent's application of 12 October 2021 to vary the orders of 28 September 2021 to the Tribunal as originally constituted to be determined according to...