HIA INSURANCE SERVICES PTY LTD v KOSTAS [2009] NSWCA 292

Appeal Outcome: Special leave granted by the High Court, 12 March 2010 s273/2009 [2010] HCATrans 57Judgment reserved, 19 May 2010 [2010] HCATrans 121

New South Wales Court of Appeal

CITATION: HIA INSURANCE SERVICES PTY LTD v KOSTAS [2009] NSWCA 292 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 June 2009

JUDGMENT DATE: 16 September 2009

JUDGMENT OF: Spigelman CJ at 1; Allsop P at 24; Basten JA at 28

(1) Allow the appeal and set aside the orders and declarations made in the Common Law Division on 30 October 2007.

(2) In lieu thereof, (a) dismiss the summons filed by the plaintiffs on 22 July 2005; DECISION: (b) order the plaintiffs to pay the costs of the first defendant in the Common Law Division.

(3) Order the first and second respondents to pay the appellant's costs in this Court.

(4) Grant the respondents an indemnity certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal.

CATCHWORDS: APPEAL – when appeal lies – statutory requirements – appeal from Consumer, Trader and Tenancy Tribunal to Supreme Court – appeal against erroneous decision with respect to a matter of law – interlocutory stage of Tribunal proceedings – questions of fact – questions of mixed law and fact – whether decisions made in respect of such questions capable of constituting subject matter of appeal – whether appellate court entitled to determine questions of fact once erroneous decision with respect to matter of law found – whether necessary for Tribunal to have expressly identified question for decision with respect to matter of law – Consumer, Trader and Tenancy Tribunal Act 2001[ (NSW) s 67(1) – Supreme Court Act 1970 (NSW), s 75A - WORDS AND PHRASES – "decision of Tribunal with respect to a matter of law"