Merrick v Zhu & Ye [2020] NSWCATAP 35

Merrick v Zhu & Ye [2020] NSWCATAP 35

The appeal was allowed because Mr Merrick was denied procedural fairness when the Tribunal made a $10,000.00 money order on 13 August 2019 despite the renewal application claiming only $4,268.00, and he had not been given notice that the different and increased claim would be made and determined. The Regulation 9 set aside process did not cure the unfairness in the circumstances, and Mr Merrick had arguable defences that had not been considered. Given the merits of the appeal, the delay caused by the unsuccessful set aside application, and the short further delay, an extension of time was granted.

Jurisdiction
Australia
Judgment Date
05 March 2020
Procedural Posture
Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Renewal Proceedings / Appeal Panel Determination of Extension of Time and Appeal
Outcome
Extension of time granted; appeal allowed; orders made on 13 August 2019 set aside; renewal proceedings remitted for redetermination by a differently constituted Tribunal.
Legal Topics
['procedural Fairness' 'notice of Hearing' 'appeal From Decision Made in Absence' 'extension of Time' 'renewal Proceedings' 'residential Building Work Dispute']
['administrative Law' 'civil Procedure' 'consumer and Commercial' 'building and Construction'] ['procedural Fairness' 'notice of Hearing' 'appeal From Decision Made in Absence' 'extension of Time' 'renewal Proceedings' 'residential Building Work Dispute']

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Procedural Posture

Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Renewal Proceedings / Appeal Panel Determination of Extension of Time and Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted for filing the Notice of Appeal.' 'Whether the Tribunal denied procedural fairness by making a money order for an increased claim of $10,000.00 when the renewal application claimed $4,268.00 and the appellant had no notice of the increased claim.' 'Whether the Regulation 9 set aside procedure cured the procedural unfairness.' 'Whether the appellant should have an opportunity to present evidence and argument at a new hearing.']

Ratio Decidendi

The appeal was allowed because Mr Merrick was denied procedural fairness when the Tribunal made a $10,000.00 money order on 13 August 2019 despite the renewal application claiming only $4,268.00, and he had not been given notice that the different and increased claim would be made and determined. The Regulation 9 set aside process did not cure the unfairness in the circumstances, and Mr Merrick had arguable defences that had not been considered. Given the merits of the appeal, the delay caused by the unsuccessful set aside application, and the short further delay, an extension of time was granted.

Court Disposition

Extension of time granted; appeal allowed; orders made on 13 August 2019 set aside; renewal proceedings remitted for redetermination by a differently constituted Tribunal.

Orders

  • ['Grant an extension of time until 4 October 2019 for the filing of the Notice of Appeal.' 'Allow the appeal.' 'Set aside the orders made by the Tribunal on 13 August 2019 in renewal proceedings number HB 19/33594.' 'Remit the renewal proceedings number HB 19/33594 for redetermination by a differently constituted...