S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Hearing dates: 29 May 2015 Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President R Perrignon, Senior Member Decision: (1) The time for filing the notice of appeal is extended to 23 December 2014. (2) Leave is granted to appeal against an interlocutory decision. (3) Leave is granted for the appeal to be made on grounds other than a question of law. (4) The decision under appeal is set aside. (5) The following issues are referred to the Tribunal for reconsideration in accordance with the Appeal Panel's reasons for decision: (a) whether the Tribunal should exercise its discretion under s 59(1)(b) of the Civil and Administrative Tribunal Act 2013 to make consent orders in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement; and (b) if not, whether the Tribunal should exercise its discretion under s 59(2) to dismiss the application. Catchwords: PRACTICE AND PROCEDURE – consent orders made by Tribunal in terms of agreed settlement – meaning of s 59(1)(b) of Civil and Administrative Tribunal Act 2013 (NSW) – exercise of discretion to make consent orders –Tribunal must take into account whether it had power to make the consent orders and must make those orders reasonably Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 41, 59(1)(b) Civil and Administrative Tribunal Rules 2014 (NSW) Commonwealth Electoral Act 1918 (Cth) Community Land Management Act 1989 (NSW), s 64 Home Building Act 1989 (NSW), s 48J, 48K, 48O Motor Accident Compensation Act 1999 (NSW), s 108 Retail Leases Act 1994 (NSW), s 68(1) Strata Schemes Management Act 1996 (NSW), s 125 Workers Compensation Act 1987 (repealed), s 151C(1), s 262 Cases Cited: Baker v Rothmans of Pall Mall (Australia) Ltd (1999) NSWCCR 374 Beck v Weinstock [2012] NSWCA 289 Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364; [2006] HCA 32 Bourdon v Outridge [2006] NSWSC 491 Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231 Fordham Laboratories Pty Limited v Sor [2011] NSWSC 706 Gallo v Dawson [1990] HCA 30, 93 ALR 479 Gaynor v Burns [2015] NSWCATAP 184 Haritos v Commissioner of Taxation [2015] FCAFC 92 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lavery v Dimension Tilers Pty Ltd [2015] NSWCATCD 59 (14 April 2015) Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439 Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18 Nassim Attileh v State Rail Authority of New South Wales [2005] NSWCA 64 Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49 Texts Cited: Mark Aronson & Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) Bernard Cairns, Australian Civil Procedure (10th ed 2014, Law Book Co) Tom Davie, Annotated Home Building Act 1989 (NSW) (2000, Prospect Media Pty Ltd) Category: Principal judgment Parties: S & G Homes Pty Ltd t/as Pavilion Homes (Appellant) Shane Owen (Respondent) Representation: Counsel: J Raftery (Appellant) R de Meyrick (Respondent)