Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Hearing dates: 05 March 2015, Submissions on costs closed on 27 March 2015 Date of orders: 08 April 2015 Decision date: 08 April 2015 Jurisdiction: Appeal Panel Before: Wright J, President M Harrowell, Principal Member J Redfern, Principal Member Decision: (1) The appeal is allowed. (2) The order of the Tribunal made on 19 January 2015 is set aside. (3) The respondent, Ozzy's Cheapest Car Sales Pty Ltd t/as Ozzy Car Sales, is to pay costs assessed in the sum of $456.00 to the appellants, Mr and Ms Hammond, within 14 days of this order. (4) The order of the Tribunal made on 18 December 2014 is set aside on condition that the respondent: (a) pays the sum of $456.00 to the appellants as required by order 3; and (b) provides to the Tribunal evidence of that payment having been made within 21 days of this order. Catchwords: ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed; CORPORATIONS – other matters – service – Corporations Act 2001 (Cth), s 109X – service by post on registered address of company – whether deemed service amounted to a reasonable opportunity to be heard or have submissions considered – no reasonable opportunity in this case; APPEAL AND NEW TRIAL – Civil and Administrative Tribunal Act 2013 (NSW), s 80(3) – whether to remit proceedings to the Consumer and Commercial Division or deal with the appeal by way of new hearing – proceed by way of a new hearing in this case; PROCEDURE – civil – judgments and orders – amending, varying and setting aside – setting aside – Civil and Administrative Tribunal Regulation 2013 (NSW), cl 9 – principles – conditions for discretion to be enlivened – principles for exercise of discretion – whether deemed service amounted to a reasonable opportunity to be heard – order set aside; PROCEDURE – civil – judgments and orders – actions on judgments – conditional orders – Civil and Administrative Tribunal Act 2013 (NSW), s 58 – set aside order conditional upon payment of costs; PROCEDURE – civil – costs – recovery of costs – litigants in person – not Australian legal practitioner – recovery of out-of-pocket expenses but not for time expended Legislation Cited: Acts Interpretation Act 1901 (Cth) Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Claims Act 1998 (NSW) Corporations Act 2001 (Cth) Motor Dealers Act 1974 (NSW) Motor Dealers Regulation 2010 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Atkinson v Crowley [2011] NSWCA 194 CMT [2014] NSWCATGD 11 Cachia v Hanes (1994)179 CLR 403 Cameron v Cole (1944) 68 CLR 571 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Collins v Urban [2014] NSWCATAP 17 Fancourt v Mercantile Credit Limited (1983) 154 CLR 87 Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Kyriakou v Long [2013] NSWSC 1890 Kyriakou v Long [2014] NSWCA 308 Northey v Bega Valley Shire Council [2012] NSWCA 28 Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 579 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Ractliffe v VOCAT (Review and Regulation) [2015] VCAT 205 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No.2] (1990) 21 NSWLR 200 Stead v State Government Insurance Commission (1986) 161 CLR 141 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 Category: Principal judgment Parties: Patrick Hammond (First Appellant) Hollie Hammond (Second Appellant) Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales (Respondent) Representation: P Hammond, first appellant in person (Appellants) K Ince, officer of the corporation (Respondent) File Number(s): AP 15/03082 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 January 2015 Before: S Smith, General Member File Number(s): MV 14/61487