Lloyd James Boyd Pty Ltd v Stavropoulos [2015] NSWCATAP 272

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lloyd James Boyd Pty Ltd v Stavropoulos [2015] NSWCATAP 272 Hearing dates: 2 October 2015, last submissions on 19 November 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member K Rosser, Senior Member Decision: Appeal dismissed Catchwords: Appeal – residential tenancy – connection with Local Court proceedings – withdrawal of appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Lloyd James Bowd Pty Ltd (Appellant) Pamela Stavropoulos (Respondent) Representation: P Doherty, by leave, represented the Appellant. The Respondent was unrepresented. File Number(s): AP 15/46662 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 23 July 2015 Before: W Sponza File Number(s): RT 15/34984

REASONS FOR DECISION 1. This appeal was heard by the Appeal Panel on 2 October 2015. By the appeal, the Appellant sought to overturn the dismissal of its claim that a residential tenancy agreement existed between it and the Respondent in respect of a property in Katoomba. 2. At the end of the hearing, directions were made for the Appellant to provide the Appeal Panel with copies of the pleadings in a Local Court proceeding brought by the Appellant against the Respondent and for the parties to serve submissions about whether the Tribunal had ceased to have jurisdiction to determine the issue in the case by virtue of Clause 5(7) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 No 2 (the Act). 3. Clause 5(7) of Schedule 4 is in terms: 5 Relationship between Tribunal and courts and other bodies in connection with Division functions (7) Effect of pending court proceedings on Tribunal. If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue. 1. Eventually, the Tribunal obtained copies of the Local Court pleadings (not from the Appellant, but from the Respondent), along with the decision of the Local Court, delivered on 4 November 2015, in which the Local Court dismissed the Appellant's claim. Submissions about the jurisdiction issue were received from the parties. 2. It is clear from the reasons for decision in the Local Court proceedings that findings were made that were adverse to the Appellant's claim the subject of the appeal, in particular, findings to the effect that the Respondent and Mr Peter Doherty dealt with each other in respect of the Katoomba property as part of an intimate relationship between them which did not involve any relationship with the Appellant. 3. On 6 November 2015, the Appeal Panel was informed, by email from the Appellant, that the Appellant wished to withdraw its appeal. 4. The Appeal Panel then invited submissions from the parties as to the issue whether the appeal should be dismissed in the exercise of the Tribunal's discretion under s55(1)(a) of the Act, which is in terms: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. 1. On 19 November 2015, the Respondent served submissions on this question and sought dismissal of the appeal. No submissions were received from the Appellant. The time by which such submissions were to be supplied has long since passed. The Appellant has not expressed any opposition to dismissal. 2. In our opinion, the appeal should be dismissed pursuant to s55(1)(a). In this regard, we take account of the absence of any opposition to dismissal from the Appellant and the lack of any qualification or explanation for its decision that it wished to withdraw the appeal. In the circumstances, it seems to us that the Appellant has abandoned such appeal rights as it had. 3. In the circumstances, we find it unnecessary that we deal with the various arguments advanced by the Respondent in support of dismissal of the appeal, which included arguments about the merits of the appeal, the Appellant's non-compliance with directions of the Appeal Panel and abuse of process. 4. We order that the appeal be dismissed.