Greg and Maria Rippon v Coastal Pole Homes Pty Ltd [2014] NSWCATCD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Greg and Maria Rippon v Coastal Pole Homes Pty Ltd [2014] NSWCATCD 108 Hearing dates: 25 and 26 July 2013, 21 May 2014 Telephone Hearing Decision date: 24 June 2014 Before: J A Ringrose, General Member Decision: 1.Following an application to reconsider a decision handed down on 31 December 2013 pursuant to the provisions of s. 53 of the Civil and Administrative Tribunal Act 2013, the decision handed down on 31 December 2013 is affirmed without variation. Legislation Cited: Civil and Administrative Tribunal Act 2013 ss. 36, 38 and 53 Category: Principal judgment Parties: Greg and Maria Rippon (applicants) Coastal Pole Homes Pty Ltd (respondent) File Number(s): HB 11/34115 Publication restriction: Nil

reasons for decision

BACKGROUND 1The substantive hearing for this matter took place in Newcastle on 25 and 26 July 2013. In that hearing Ms McMahon of Counsel appeared for the applicants and Mr Bland of Counsel appeared for the respondent. 2On 26 July 2013 the decision of the Tribunal was reserved and the following directions were made and published to the parties on 30 July 2013; (1)A copy of the decision will be sent to you in due course. (2)Applicant to provide and serve submissions by 12 August 2013. (3)Respondent to provide and serve submissions by 13 September 2013. (4)Applicant to provide and serve submissions in reply by 27 September 2013. (5)Submissions by both parties are to address the issue of costs. When parties are advised that a decision has been made in any document relevant to special costs orders is to be provided to the Tribunal and to the other party. 3Counsel appearing for both parties had appeared previously in other Tribunal matters and it was assumed that both Counsel were familiar with the process associated with filing of submissions. A dispute has arisen concerning the filing of submissions and it is accordingly appropriate to note that the sound recording of the 26 July 2013 includes the following; "I won't put this in the formal orders simply because I will simply order exchange of submissions, but if counsel on both sides could, when forwarding to the Tribunal, forward a copy to me, and my email address is (email address provided), so if you, if parties are able to do that, that would facilitate .... the recording further shows that Ms McMahon discussed filing submissions by email or fax and stated that she had filed with the Registry via fax in the past." 4The initial submissions from the applicant were received by the Registry in accordance with the timetable as were the submissions provided by the respondent but there is no record of submissions in reply having been received by the Registry or by the member at any time prior to mid- October. 5Paragraph 14 of the Decision published on 31 December 13 notes; "the initial submissions from the applicant and the respondent were received but the applicants did not provide submissions in reply as required by the Directions made on 26 July. The submissions in reply had not been received by mid October 2013 and the matter was referred for final determination in late October 2013." 6By a letter dated 3 February 2014 Ms McMahon of counsel for the applicants, suggested that the submissions in reply were forwarded by email to the Members chambers "in accordance with directions". A response from the Registry noted that submissions had in reply from the applicants had not been received by the Registry by mid-October and the submissions in reply were accordingly not considered when the final determination was made. 7On 10 February 2014 the Tribunal received a letter dated 2 February 2014 from the applicants. That letter noted that they had recently received advice from the solicitor for the respondent that Coastal Pole Homes Pty Ltd was now deregistered. An application for voluntary insolvency was filed in August 2013 and the company was deregistered as and from 16 October 2013. The letter continued in part as follows; "1 -We have incurred significant additional costs including preparation of final submissions, review of the other sides reply, and preparation of our final "right of reply". This has happened after Mr Brandley applied for voluntary insolvency. We need to not be incumbent (stet) upon the company to notify us and the CTTT of such a critical event? We would not have incurred such a lot of additional costs had we known these facts back in August last year." The letter then continued' "5 - Finally we await your consideration of our "right of reply" to be considered in order that we may lodge a claim on the Home Owners Warranty insurance to get the problems caused by Coastal Pole Homes fixed, and note that we have lost well over $15,000.00 in legal costs to pursue this matter in good faith of the processes required by law". 8The matter has thereafter been referred back for consideration as to whether the powers available under section 53 of the Civil and Administrative Tribunal Act 2013 should be invoked in relation to the submissions in reply which were not provided to the Tribunal in accordance with the directions. 9The matter was listed for Telephone Directions on 21 May 2014 in order to enable the respondent to consider and if appropriate make submissions regarding the application. The applicants appeared in person by phone on 21 May and Mr Blackwell, solicitor, sought leave to appear on behalf of a Director of the company which had been de-registered. Mr Blackwell was granted leave to appear and was given an opportunity to make submissions on or before 4 June in relation to the power of the Tribunal to revisit the matter under s.53.