Cao v Lavish Construction and Developments Pty Ltd [2022] NSWCATAP 391

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cao v Lavish Construction and Developments Pty Ltd [2022] NSWCATAP 391 Hearing dates: 31 October 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member G Blake AM SC, Senior Member Decision: (1) The time for lodgement of the notice of appeal so far as it relates to the interlocutory decision made by the Tribunal on 9 May 2022 is extended to 20 July 2022. (2) Leave to appeal against the interlocutory decision made by the Tribunal on 9 May 2022 is granted. (3) The appeal against the interlocutory decision made by the Tribunal on 9 May 2022 and the decision of the Tribunal made on 22 June 2022 is allowed. (4) The interlocutory decision made by the Tribunal on 9 May 2022 and the decision of the Tribunal made on 22 June 2022 are set aside. (5) The appeal is otherwise dismissed as incompetent. (6) Subject to the outcome of any costs application pursuant to order (7) below, each party is to pay their own costs of the appeal. (7) If any party wishes to make an application to vary order (6) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, on or before 14 days from the date of this decision. (8) Any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply on or before 28 days from the date of this decision. (9) The costs applicant is to file any submissions limited to three pages in reply on or before 35 days from the date of this decision. (10) The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: APPEALS — whether appeal incompetent having regard to s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – appellant did not appeal from a decision of the Tribunal – appeal dismissed as incompetent APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions – leave to appeal against interlocutory decision granted APPEALS — Procedure — Time limits — Extension of time – application granted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 5, 28, 29, 32, 41, 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38, 38A Home Building Act 1989 (NSW), 48O Cases Cited: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Australian Press Council Inc v Southey [2022] NSWCATAP 127 Collins v Urban [2014] NSWCATAP 17 Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 House v R (1936) 55 CLR 499; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Nelson v The Owners – Strata Plan No.49504; The Owners – Strata Plan No.49504 v Nelson [2020] NSWCATAP 194 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Pregard Pty Ltd v Ballinger [2021] NSWCATAP 321 Prendergast v Western Murray Irrigation Ltd [2004] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Tom v Commissioner for Fair Trading [2022] NSWCATAP 303 TriCare (Hastings) Limited v Allen [2015] NSWCA 344 Texts Cited: None cited Category: Principal judgment Parties: Xi (Catherine) Cao (Appellant) Lavish Construction and Developments Pty Ltd (Respondent) Representation: Counsel: B Jacobs (Appellant)