Zinck v NJS Enterprises Pty Ltd t/as High End Performance & Automotive [2021] NSWCATAP 401

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zinck v NJS Enterprises Pty Ltd t/as High End Performance & Automotive [2021] NSWCATAP 401 Hearing dates: 30 November 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J McAteer, Senior Member Decision: (1) The appeal is allowed. (2) The Tribunal's order made on 1 September 2021 dismissing the appellants' application is set aside. (3) The claims in the appellants' application are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal upon the evidence already adduced to the Tribunal at first instance, the balance of the appellants' 6 July 2021 documents and such further evidence as the Tribunal may allow. Catchwords: APPEALS - Error of law – Whether the Tribunal failed to afford procedural fairness by refusing to admit documents into evidence - Whether the Tribunal constructively failed to exercise jurisdiction by not making a finding on a material question of fact Legislation Cited: Australian Consumer Law (NSW), s 60 Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Cases Cited: C G Constructions Pty Limited v Hanson Constructions Materials Pty Limited [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146; [1986] HCA 54 Vella v LB Dellit Pty Ltd (t/as Dellit Design and Construct) [2021] NSWCATAP 376 Category: Principal judgment Parties: Danny Zinck and Joyita Zinck (Appellants) NJS Enterprises Pty Ltd t/as High End Performance & Automotive (Respondent) Representation: Appellants (self-represented) N Smith (Director) (Respondent) File Number(s): 2021/00270562 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 1 September 2021 Before: P Thew, General Member File Number(s): MV 21/15055