Roach v Swain [2021] NSWCATAP 258

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roach v Swain [2021] NSWCATAP 258 Hearing dates: 10 August 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President J McAteer, Senior Member Decision: (1) The appeal is allowed. (2) The orders made 24 May 2021 are set aside in the proceedings are remitted for rehearing by the Tribunal. (3) In respect off the remitted proceedings the following directions are made: (a) On or before 27 August 2021 the applicant (Swain) is to file a bundle of documents to contain all evidence relied upon for the purpose of the remitted proceedings, including a copy of any documents previously provided at the original hearing or to the Appeal Panel in appeal 2021/00159233. (b) On or before 3 September 2021 the respondents (Roach) are to file a bundle of documents to contain all evidence relied upon for the purpose of the remitted proceedings, including a copy of any documents previously provided at the original hearing or to the Appeal Panel in appeal 2021/00159233. (c) Evidence from all witnesses, including evidence from each of the parties must be in the form of a statutory declaration or signed statement and all witnesses must be available for cross examination. This includes any evidence from tradespeople concerning work done at the premises in respect of the matters the subject of the dispute and any expert evidence concerning reports in relation to the residential premises. (d) All witness statements must be included in the respective party's bundle required by directions (a) and (b). (e) Each party must provide in their agreed bundle a short submission (not more than 3 pages): (i) In the case of the applicant, setting out each item of claim and the amount sought in respect of that item and a brief statement as to the legal basis upon which the claim is brought (for example breach of an obligation to repair or failure to provide premises fit for habitation for habitation); and (ii) In the case of the respondents, replying to each of the items in (e)(i) and otherwise setting out why they have no liability. (f) All bundles must be indexed and paginated and provided to the Tribunal in hard copy. To the extent documents were previously provided to the Tribunal they must be reproduced and included in each parties' bundle as required by these directions. (g) A party may not rely on documents provided late or not in accordance with the above directions without leave of the Tribunal which leave will only be granted in exceptional circumstances. (h) The leave previously granted to the respondents' Agent (Ms Katelyn Aislabie of Street Property Management) to represent the respondents in the proceedings at first instance is revoked and the respondents are to have carriage of their own matter, provided that nothing in this direction prevents the Agent from being a witness and providing a witness statement in these proceedings in accordance with the directions above. (i) Nothing in these orders prevents the Tribunal from making such further or different directions as it considers appropriate. (4) The issue of whether the appellants (Roachs), or the Agent, should pay the costs of the Respondent (Swain) in the proceedings at first instance, being costs thrown away by reason of the Agent failing to appear at the hearing on 24 May 2021 (including any costs incurred in registering the original money order in the Local Court New South Wales), is to be determined by the Tribunal on remittal. Catchwords: ADMINISTRATIVE LAW – procedural fairness and natural justice – obligation to grant adjournment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Italiano v Carbone & Ors [2005] 177 Texts Cited: Nil Category: Principal judgment Parties: Adrian Roach (First Appellant) Dimitra Roach (Second Appellant) Zoe Swain (Respondent) Representation: First Appellant (Self-represented) A Roach (Second Appellant) Respondent (Self-represented) File Number(s): 2021/00159233 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 May 2021 Before: K Clark, General Member File Number(s): RT 21/05116