Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hertslet v Doherty; Doherty v Hertslet [2016] NSWCATAP 46 Hearing dates: 26 October 2015 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President D Goldstein, Senior Member Decision: AP 15/41467 1. The contractor's application for Senior Member Goldstein to disqualify himself for bias is refused. 2. Appeal from Tribunal's decision in HB 13/34899 is withdrawn and dismissed. 3. Appeal from Tribunal's decision in HB 13/50846 dated 4 June 2015 is allowed and the orders are set aside. 4. The grounds of appeal warrant a new hearing. 5. The respondents' (homeowners') application for costs on appeal is refused.

AP 15/42967 1. Time for the lodging of the appeal is extended to 14 July 2015. 2. Appeal from Tribunal's decision in HB 13/50846 dated 4 June 2015 is allowed and the orders are set aside. 3. The grounds of appeal warrant a new hearing.

AP 15/41467 and AP 15/42967 – new hearing of costs applications in HB 13/50846 1. The homeowners' application for costs is refused. 2. The contractor's application for costs is refused. Catchwords: APPEAL – costs application when proceedings settled – relevant principles are different from the principles that apply following a contested hearing – procedural fairness – whether it is a breach of procedural fairness for Member to fail to ask parties whether they object to that Member determining an application for costs when proceedings settled New hearing – consideration of material before Tribunal below – application of correct principles to costs application Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Regulation 2009 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 401 Bienstein v Bienstein (2003) 195 ALR 225 Calderbank v Calderbank [1975] 3 All ER 333 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Farah v Elias [2015] NSWSC 1417 Gribbles Pathology Pty Ltd v Health Insurance Commission Commonwealth of Australia & Graham Grayson (1997) 80 FCR 284 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 House v The King [1936] HCA 40; (1936) 55 CLR 499 Johnson v Johnson (2000) 201 CLR 488 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178 Livesey v NSW Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Miwa Pty Ltd v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Red Bull Australia Pty Ltd v Michael Peter Stacey and Christian Walter Graebner [2011] NSWSC 1350 Sankey v Whitlam [1977] 1 NSWLR 333 Transfield Services (Australia) Pty Ltd v James Gaha [2012] NSWSC 865 Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) (RLD) [2011] NSWADTAP 29 Wentworth v Graham [2003] NSWCA 240 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) Category: Costs Parties: AP 15/41467 Douglas Hertslet t/as Kitchen Excellence (Appellant) Peter Doherty (1st Respondent) Jan Swinhoe (2nd Respondent)