Birch Lang & Co Pty Ltd v Burston [2020] NSWCATAP 191

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Birch Lang & Co Pty Ltd v Burston [2020] NSWCATAP 191 Hearing dates: 25 June 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D Robertson, Senior Member Decision: (1) AP 20/16622: (a) The appeal is allowed in part; (b) Order 1 made in COM 19/53190 on 13 March 2020 is set aside and the following order substituted: "Birch Lang & Co Pty Ltd is to pay Jo-Ellen Burston the amount of $5,704.78, within 14 days of the date of these orders"; (c) The remaining part of the Tribunal's decision relating to the claim for reimbursement for deductions from trust monies held by Birch Lang & Co Pty Ltd for expenses incurred, for payment of rental to 8 October 2019, and for reimbursement of the amount of $1,681.61, is remitted to the Consumer and Commercial Division for reconsideration, with further evidence as directed by the Tribunal; (d) The order for costs is set aside and any application for costs of the proceedings at first instance and on remittal is to be determined by the Tribunal. (2) AP20/16626: (a) The appeal is allowed; (b) The orders made in COM 19/56227 are set aside and the matter remitted to the Consumer and Commercial Division for reconsideration, with further evidence as directed by the Tribunal; (c) The order for costs is set aside and any application for costs of the proceedings at first instance and on remittal is to be determined by the Tribunal. (3) AP20/16622 and AP20/16626: (a) If any party seeks an order for costs of the appeals, leave is granted to file and serve a short written submission on that issue within 14 days of the date of these orders; (b) Leave is granted for the other party to file and serve a short written submission in reply within a further period of 14 days; (c) The parties' submissions are to address the issue of whether the Tribunal should dispense with a hearing on the issue of costs of the appeals pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 s 50(2). Catchwords: ADMINISTRATIVE LAW – Hearing rule – Procedural fairness - Failure to identify whether the appellant's director's statements and assertions during the hearing were to be treated as evidence – Failure to accord opportunity for statements and assertions to be treated as evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Property Stock and Business Agents Act 2002 Cases Cited: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 Jayasooriah v Wisdom Properties Group Pty Ltd [2020] NSWCATAP 81 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 Texts Cited: None cited Category: Principal judgment Parties: Birch Lang & Co Pty Ltd (Appellant) Jo-Ellen Burston (Respondent) Representation: Counsel: G Moore (Appellant) M Klooster (Respondent)