York v Ken Ross Repairs Mudgee Pty Ltd [2020] NSWCATAP 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: York v Ken Ross Repairs Mudgee Pty Ltd [2020] NSWCATAP 93 Hearing dates: 24 March 2020 Date of orders: 25 May 2020 Decision date: 25 May 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Curtin SC, Senior Member Decision: (1) The Appeal is allowed. (2) The decision of the Tribunal below is set aside. (3) The proceeding is remitted to the Tribunal, differently constituted, to be determined in accordance with law with the exception of the claims in relation to: (a) loss of enjoyment; and (b) threats of physical harm, which are otherwise dismissed. (4) The appellant shall not be permitted to tender evidence in the remitted proceedings going solely to the question of credit. (5) The appellant may not file any application for a summons for production of documents without prior leave of the Tribunal. Catchwords: CIVIL PROCEDURE – hearing – failure to give reasons – failure to engage with the appellant's case – error in finding evidence did not satisfy onus of proof – error in making orders – denial of procedural fairness – conditions imposed on conduct of remitted hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(4), 38(5)(c), 46(1) & 53(3) Civil Liability Act 2002 (NSW), s 16(1) Evidence Act 1995 (NSW), s 102 Cases Cited: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Hamod v State of New South Wales [2011] NSWCA 375 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Rodger v De Gelder [2015] NSWCA 211 Wakim v Mathiew Pty Ltd [2002] NSWSC 405 Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Category: Principal judgment Parties: Stephen York (Appellant) Ken Ross Repairs Mudgee Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) K Ross (Director) (Respondent) File Number(s): AP 20/1080 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 09 December 2019 Before: K Rickards, General Member File Number(s): MV 19/46666