Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Actol Pty Ltd v Rise Products Pty Ltd; Rise Products Pty Ltd v Actol Pty Ltd [2023] NSWCATAP 259 Hearing dates: 1 May 2023 Date of orders: 18 September 2023 Decision date: 18 September 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Curtin SC, Senior Member Decision: In 2023/00061795: 1. Leave to extend time for the filing of the appeal by Rise Products Pty Ltd is granted to the date of filing of the Notice of Appeal. 2. Leave is granted to Rise Products Pty Ltd to challenge the Tribunal's determination of costs in the proceedings at first instance in the appeal. 3. Actol Pty Ltd is to pay Rise Products Pty Ltd the sum of $10,650.60 within 21 days. 4. Make no order as to costs of the appeal. 5. If any party wishes to make an application to vary order (4) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision. 6. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. 7. 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. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. 8. In respect of the challenge to the decision as to costs at first instance: (a) Rise Products Pty Ltd must file and serve submissions in support of the appeal, limited to five pages and any evidence in support, on or before 14 days from the date of this decision; (b) Actol Pty Ltd 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; (c) The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of this aspect of the appeal, 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 appeal being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of this aspect of the appeal. In 2023/00003459: 1. Leave to appeal is refused. 2. The appeal on questions of law is dismissed. 3. Actol Pty Ltd is to pay the costs of Rise Products Pty Ltd of the appeal as agreed or assessed under the applicable costs legislation. 4. If any party wishes to make an application to vary order (3) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision. 5. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. 6. 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. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. Catchwords: APPEALS – statutory interpretation – when amendment increasing Tribunal's monetary jurisdictional limit in claims under the Fair Trading Act 1987 (NSW) takes effect – questions of law – adequacy of reasons as a question of law – need to identify questions of law with clarity Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Corporations Act 2001 (Cth) Design and Building Practitioners Act 2020 (NSW) Fair Trading Act 1987 (NSW) Fair Trading Amendment (Monetary Limit on Orders) Regulation 2022 (NSW) Home Building Act 1989 (NSW) Interpretation Act 1987 (NSW) Subordinate Legislation Act 1989 (NSW) Worker's Compensation Act 1987 (NSW) Cases Cited: 20*20 Pty Ltd v D&G Developments Pty Ltd [2009] WASC 343 Ace Woollahra Pty Ltd v The Owners--Strata Plan 61424 & Anor [2010] NSWCA 101 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Biggin and Co Ltd v Permanite Ltd (1951) 1 KB 422 Collins v Urban [2014] NSWCATAP 17 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Gallagher v Masters Installation Pty Ltd [2017] NSWCA 117 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 House v R (1936) 55 CLR 499 In the Matter of Richards Contracting Co Management Pty Ltd [2021] NSWCA 34 Jackamarra v Krakouer (1998) 195 CLR 516 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Kavanagh v Blissett [2001] NSWCA 79 Kelly v Szatow [2020] NSWSC 407 Laws v GWS Machinery Pty Ltd [2007] NSWSC 316 Maxwell v Murphy (1957) 96 CLR 261 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, at 342; [2015] HCA 40 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Eshetu 197 CLR 61; [1999] HCA 21 Minister for Migration and Citizenship v Li (2013) 249 CLR 332 Moloney v Taylor [2016] NSWCA 199 New South Wales Police Force v Winter [2011] NSWCA 330 Ohlstein v E & T Lloyd [2006] NSWCA 226 Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 Polyukovish v Commonwealth (1991) 172 CLR 501; [1991] HCA 32 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 77 ALJR 1165; [2003] HCA 30 Robertson v City of Nunawading [1973] VR 819 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 Salmon v Osmond [2015] NSWCA 42 Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Stephens v The Queen [2022] HCA 31 Suvaal v Cessnock City Council (2003) 77 ALJR 1449; [2003] HCA 41 at [36] Sze Tu v Lowe [2014] NSWCA 462 Targeted Property Investments Pty Ltd v Look Up Technologie Pty Ltd (No 2) [2023] NSWSC 416 Theo Holdings Pty Ltd v Hockey; Australian Competition And Consumer Commission v Theo Holdings Pty Ltd [2000] FCA 665; (2000) 99 FCR 232 Tomko v Palasty (No 2) [2007] NSWCA 369 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: 2023/00003459: Actol Pty Ltd (Appellant) Rise Products Pty Ltd (First Respondent) Daniel Pszczonka (Second Respondent) Benth Holdings Pty Ltd t/as Gledswood Projects (Third Respondent)