Chapman v Nicolosi [2023] NSWCATAP 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chapman v Nicolosi [2023] NSWCATAP 44 Hearing dates: 5 December 2022 Date of orders: 20 February 2023 Decision date: 20 February 2023 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member G Curtin SC, Senior Member Decision: (1) The appeal is upheld. (2) Order 1 of the Tribunal dated 16 August 2022 is set aside. (3) If either party opposes the remitter being made to the Tribunal as originally constituted, that party will lodge and serve on the other party written submissions supporting that contention of no more than three pages within seven days of the date of these reasons. (4) Any reply of no more than three pages to those submissions must be lodged and served on the other party within 14 days of the date of these reasons. (5) Any submissions lodged and served are to indicate whether the party consents to or opposes the remitter issue being decided on the papers, and if opposed, submissions why the issue should not be decided on the papers. (6) If no submissions are received from any party opposing the remitter being made to the Tribunal as originally constituted, then we order that the proceedings be remitted to the Tribunal as originally constituted for determination in accordance with these reasons. (7) The evidence on the remitted proceedings shall be the same as received into evidence in the original proceedings, save that the parties are granted leave to lodge and serve any additional evidence as to the existence, scope and cost of rectifying the roof screw issue in the verandah as described in Mr Ward's Rectification Order dated 23 October 2019 at paragraph 2c and d. (8) The parties are granted leave to make further submissions on the issues remitted subject to the directions of the Tribunal at first instance. Catchwords: CONTRACTS — construction — interpretation — background – regard must be had to the terms of the contract – no issue of principle ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal – from finding of fact – no evidence ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – appeal – credibility of witness – finding against credit flawed by a misapprehension of concession made and misapprehension of evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 36(2), 80 Cases Cited: C v W [2015] NSWSC 1774 Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Re R [2000] NSWSC 886 Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 Texts Cited: Halsbury's Laws of Australia, online edition Category: Principal judgment Parties: Nigel Christopher Chapman (Appellant) Gail Joy Nicolosi (Respondent) Representation: Counsel: G Carolan (Appellant)