Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435

Supreme Court New South Wales

Medium Neutral Citation: Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435 Hearing dates: 24 February 2011 Decision date: 25 November 2011 Jurisdiction: Common Law Before: Adams J Decision: 1. The decision of the Consumer, Trader and Tenancy Tribunal of 2 February 2010 in File No HB 09/58015 between Leanne Juliet Cunningham and Blue Haven Pools and Spas Pty Ltd is quashed. 2. The orders made pursuant to the said decision are vacated. 3. The matter is remitted to the Tribunal for hearing and determination according to law. 4. The defendant is to pay the plaintiff's costs of the summons. Catchwords: ADMINISTRATIVE LAW - claim for prerogative relief - procedural fairness - failure to notify party of hearing - adverse order made in absence of party - Consumer, Trader and Tenancy Tribunal Act 2001, ss 25, 35 and 78 - Consumer, Trader and Tenancy Tribunal Regulation 2009 regs 30 and 80. PROCEDURE - appeal - Uniform Civil Procedure Rules 2005, Part 50 - Consumer, Trader and Tenancy Tribunal Act 2001, ss 65 and 67 - definition of "appeal" under UCPR Part 50 -relief granted under Supreme Court Act 1970, s 69, - whether application for prerogative relief constitutes an appeal under Part 50 - Supreme Court without jurisdiction to entertain appeals from the Consumer, Trader and Tenancy Tribunal. Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Supreme Court Act 1970 Interpretation Act 1987 Uniform Civil Procedure Rules 2005 Cases Cited: Ah Yick v Lehmert (1905) 2 CLR 593 Commonwealth v Brisbane Milling Co (1915) 21 CLR 559 at 576 Rugani v Director of Police (2005) 222 CLR 489 Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Kirk v Industrial Relations Commission (2010) 262 ALR 569 Craig v South Australia (1995) 184 CLR 163 Italiano v Carbone [2005] NSWCA 177 SZBEL v Minister for Immigration (2006) 228 CLR 152 Category: Interlocutory applications Parties: Blue Haven Pools & Spas Pty Limited (Plaintiff) Leanne Juliet Cunningham (First defendant) Consumer Trader & Tenancy Tribunal (Second defendant) Representation: M. Dulhunty (Plaintiff) J.S. Emmett (First defendant) Crown Solicitor (Second defendant) Coyne Legal (Plaintiff) Holman Webb Lawyers (First defendant) Crown Solicitor (Second defendant) File Number(s): 2010/365030