SHH Ltd v Woodorth Plumbing Services Pty Ltd [2014] NSWCATAP 46

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SHH Ltd v Woodorth Plumbing Services Pty Ltd [2014] NSWCATAP 46 Hearing dates: 11/08/2014 Decision date: 05 September 2014 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President S Thode, Senior Member Decision: 1. The appeal be upheld. 2. The orders 1 and 2 made on 26 February 2014 in both matters HB13/55515 and HB13/57683 be set aside. 3. The whole of the proceedings in matters HB13/55515 and HB13/57683 be remitted to the Consumer and Commercial Division for rehearing before a differently constituted Tribunal. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal NSW - appeal panel - residential building work - tribunal decided on a basis that was not in issue or argued in the proceedings - denial of procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Warkworth Mining Limited v Bulga [2014] Category: Principal judgment Parties: SHH Ltd (Appellant) Woodorth Plumbing Services Pty Ltd (Respondent) File Number(s): AP 14/0041 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-26 00:00:00 Before: G Meadows (Senior Member) File Number(s): HB13/55515 HB13/57683

reasons for decision

Introduction 1The appellant is the owner of a property which is used as a training facility and accommodation for artists and is also the residence of one of the owner's directors. The owner retained the respondent, a licensed plumbing company, to carry out work on a bathroom at the property in or about August 2013. The owner was, however, dissatisfied with the quality of the plumbing building work and did not pay for it. On 22 October 2013 the respondent plumbing company commenced proceedings in the Home Building Division of the Consumer Trader and Tenancy Tribunal, seeking payment of $3408.35 (HB13/55515). On 7 November 2013 the owner commenced proceedings seeking relief from payment for the work as claimed and damages for defective and incomplete residential building work (HB13/57683). 2The matters were heard together on 12 February 2014 in the Consumer and Commercial Division of this Tribunal under cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the Act). The Tribunal delivered its decision on 26 February 2014 and made orders as follows: 1. In matter No HB 13/55515, the respondent is to pay the applicant the sum of $3408.35 within 30 days of the date of these orders. 2. Application number HB13/57683 is dismissed. 3The owner has appealed against the decision under s 80(2)(b) of the Act. 4For the reasons which follow, we have concluded that the appeal should be allowed and the whole of both proceedings should be remitted to be reheard in the Consumer and Commercial Division by a differently constituted tribunal. 5The reasons why we have concluded that the appeal should be allowed can be stated relatively briefly. There was, however, a certain amount of confusion on the part of the Appeal Panel and among the parties as to what was actually being determined at the Appeal Panel hearing on 11 August 2014 and consequently we shall also explain what occurred and the reasons why, in the interests of facilitating the just, quick and cheap resolution of the real issues in the proceedings, we took the course we did. 6These reasons deal with the appeal first and then address the procedural confusion and how it was resolved.