Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213 Hearing dates: 24 September 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G K Burton SC, Senior Member Decision: 1. Time for filing the notice of appeal is extended to 7 July 2020 and, to the extent that further leave is required, time for filing the amended notice of appeal is extended to 28 July 2020. 2. The appeal is allowed. 3. The proceedings are remitted to the Consumer and Commercial Division for re-hearing in conjunction with any further proceedings properly brought by the appellant. 4. In respect of the costs of the appeal: (a) The parties are to file and serve written submissions in chief with any further material relevant to costs within fourteen days of the date of these orders; (b) The parties are to file and serve written submissions in reply with any further material in reply relevant to costs of the appeal within 28 days of the date of these orders; (c) If no written submissions are filed and served in accord with paragraph (4)(a) then there will be no order as to the costs of the appeal. Catchwords: Dividing Fences – adequacy of reasons and findings on jurisdictional facts and discretionary grounds – extension of time – discretionary considerations – prospects on appeal – explanation for delay – prejudice and utility of remission for further hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Alwiah v Watts [2004] NSWSC 948 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578, [2000] FCA 1434 Chase Oyster Bar PL v Hamo Industries PL [2010] NSWCA 190 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 House v The King (1936) 55 CLR 499 Jackson v NSW Land and Housing Corp [2014] NSWCATAP 22 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 Larney v Johansson [2013] NSWCA 409 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 NSW Land and Housing Corp v Orr [2019] NSWCA 231 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Purcell v Chadwick [2018] NSWCATAP 250 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Texts Cited: Nil Category: Principal judgment Parties: Kimberley Developments PL (Appellant) Cicihour Pty Ltd (Respondent) Representation: Counsel: