Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood v Gong Yu [2014] NSWCATAP 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood v Gong Yu [2014] NSWCATAP 57 Hearing dates: On the papers Decision date: 30 September 2014 Before: K Rosser Senior Member R Deutsch Senior Member Decision: 1.Leave to appeal is granted. 2.The appeal is determined on the papers. 3.The appeal is allowed in respect of water usage charges only and is otherwise dismissed. 4.The Tribunal's decision dated 22 May 2014 is set aside and the following order is substituted for the Tribunal's order: Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood is to pay Gong Yu the sum of $1347.50 on or before 13 October 2014. Catchwords: APPEAL - Civils and Administrative Tribunal (NSW) - application for leave to appeal - whether error of fact - leave granted. Legislation Cited: Consumer Claims Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood (Appellant) Gong Yu (Respondent) File Number(s): AP 14/46410 (AP14/0232) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-22 00:00:00 Before: D Charles File Number(s): Gen 14/12639

reasons for decision

Introduction 1This is an appeal against a decision made in the Consumer and Commercial Division of the Tribunal on 22 May 2014. The Tribunal's orders and a statement of reasons for the decision were published on that date. The Tribunal ordered the appellant (the respondent below) to pay the respondent in these proceedings (the applicant below) the sum of $1499.26 on or before 19 June 2014. The Tribunal had power to make such an order under s 8(1)(a) of the Consumer Claims Act 1998. 2The appeal is an internal appeal pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (the Act). It was lodged on 10 June 2014, which is within the 28 day time limit specified in Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules). 3The appellant has not appealed on a question of law and no question of law is raised by the Notice of Appeal and other material filed by the appellant. In accordance with s 80(2)(b) of the Act, the appellant therefore requires leave to Appeal. 4Cl 12(1) of Schedule 4 of the Act provides that leave to appeal against a decision made in the Tribunal's Consumer and Commercial Division may only be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: a)the decision of the Tribunal under appeal was not fair and equitable, or b)the decision of the Tribunal under appeal was against the weight of evidence, or c)significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 5For the reasons set out below, the Appeal Panel has decided: (1)Leave to appeal is granted; (2)The appeal is determined on the papers; (3)The appeal is allowed in respect of water usage charges only and is otherwise dismissed; (4)The Tribunal's decision dated 22 May 2014 is set aside and the following order is substituted: Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood is to pay Gong Yu the sum of $1347.50 on or before 13 October 2014.