Chand v Azurra Pty Ltd (in liquidation) [2011] NSWCA 227

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chand v Azurra Pty Ltd (in liquidation) [2011] NSWCA 227 Hearing dates: 12 July 2011 Decision date: 05 August 2011 Before: Hodgson JA at [1] Basten JA at [2] Macfarlan JA at [7] Decision: The applicants' summons is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - procedural fairness - whether Consumer, Trader and Tenancy Tribunal denied applicants procedural fairness in giving no weight to expert report on basis of non-compliance with Makita v Sprowles principles - whether Tribunal denied applicants procedural fairness in excluding one applicant from hearing room while her husband was being cross-examined - whether excluded applicant was denied a reasonable opportunity to be present and participate in the proceedings on second hearing day

ADMINISTRATIVE LAW - judicial review - relief sought in the nature of certiorari - whether Consumer, Trader and Tenancy Tribunal made factual findings in the absence of any evidence to support those findings

EVIDENCE - principle in Jones v Dunkel - whether failure to call available party eyewitness relevant to assessment of evidence of another party eyewitness who was called Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Evidence Act 1995 Supreme Court Act 1970 Cases Cited: Chand v Lifestyle Homes NSW* Pty Ltd [2011] NSWCA 129 CJD Equipment Pty Limited v A&C Constructions Pty Limited [2011] NSWCA 188 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Manly Council v Byrne [2004] NSWCA 123 Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Wenkart v Pitman (1998) 46 NSWLR 502 Texts Cited: Wigmore on Evidence (Chadbourn Rev 1979), Vol 2 Category: Principal judgment Parties: Ajay Chand (First Applicant) Shashi Chand (Second Applicant) Azurra Pty Ltd (in liquidation) (First Respondent) Lifestyle Homes NSW* Pty Ltd (Second Respondent) Consumer, Trader and Tenancy Tribunal (Third Respondent) District Court of New South Wales (Fourth Respondent) Representation: Counsel: F Corsaro SC (Applicants) M Painter/T Glover (Second Respondent) Solicitors: Adams & Partners Lawyers (Second Respondent) I V Knight, Crown Solicitor (Third and Fourth Respondents) File Number(s): CA 2010/140345