Marcus v Carroll [2022] NSWCATAP 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Marcus v Carroll [2022] NSWCATAP 141 Hearing dates: 15 March 2022 Date of orders: 04 May 2022 Decision date: 04 May 2022 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to appeal granted. 2. Appeal allowed, but only in so far as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and the appellant's claim for misrepresentation in contravention of s 29 of that law. 3. Otherwise, the appeal is dismissed. 4. The order made by the Tribunal on 2 December 2021 dismissing the appellant's claim is set aside but only insofar as it concerned the appellant's claim for misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (NSW) and the appellant's claim for misrepresentation in contravention of s 29 of that law. 5. The appellant's claims referred to in Order 2 and 4, in respect of which the appeal is allowed, are to be redetermined by a differently constituted Tribunal. Catchwords: CONSUMER LAW-supply and installation of timber flooring-alleged misleading and deceptive conduct, misleading representation and breach of contract. APPEALS-- material photographic evidence not addressed-error of law in respect of one of the appellant's claims only-leave to appeal-plain error such that it would be unjust to allow important finding to stand in respect of one of the appellant's claims only - leave to appeal not granted on the basis of new evidence. Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act (NSW) (2013) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Category: Principal judgment Parties: Marald Marcus (Appellant) James Carroll t/a Floor Sure (Respondent) Representation: Appellant Self-represented Respondent Self-represented File Number(s): 2021/356556 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 2 December 2021 Before: S Hausfeld, General Member File Number(s): GEN 21/41592