Maconachie v Kullenberg & Ors [2005] NSWCA 294

New South Wales Court of Appeal

Maconachie v Kullenberg & Ors [2005] NSWCA 294 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 August 2005

JUDGMENT DATE: 31 August 2005

JUDGMENT OF: Giles JA at 1; McColl JA at 2; Basten JA at 70

DECISION: (1) Grant the Claimant an extension of time within which to appeal from the judgment of the Master in the Common Law Division. (2) Grant leave to appeal and direct that the Notice of Appeal be filed within 7 days. (3) Allow the appeal to this Court and set aside the judgment and orders of the Master. (4) In lieu of the orders of the Master, order: (a) that the decision of the Consumer Trader and Tenancy Tribunal dated 9 August 2004 in proceedings No MV 04/20472 be set aside as against the Claimant; and (b) that the matter be remitted to the Consumer Trader and Tenancy Tribunal to be heard and determined according to law. (5) Order the Opponents to pay the Claimant's costs of the appeal and the proceedings before the Master, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - procedural fairness - CONSUMER, TRADER AND TENANCY TRIBUNAL - whether Tribunal's order flawed - failure to comply with statutory procedure requiring person joined as party to be served with notice of the proceedings - finding that Claimant aided and abetted company's contravention of the Fair Trading Act 1987 - failure to give Claimant a reasonable opportunity to be heard - D

Administrative Decisions Tribunal Act 1997 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2002 LEGISLATION CITED: Fair Trading Act 1987 Home Building Act 1989 Supreme Court Rules 1970 Suitors' Fund Act 1951