Wickham v Tiffney [2016] NSWCATAP 203

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wickham v Tiffney [2016] NSWCATAP 203 Hearing dates: On the papers Date of orders: 08 September 2016 Decision date: 08 September 2016 Jurisdiction: Appeal Panel Before: S Higgins, Principal Member Dr J Lucy, Senior Member Decision: (1) The appeal is allowed.

(2) Order 2 of the decision of the Tribunal made on 3 September 2015 is set aside.

(3) The matter is to be reconsidered by the Tribunal in accordance to law. Catchwords: APPEAL - appeal by appellant homeowner from a decision of the Tribunal in the Consumer and Commercial Division to make no "further or additional order" as to costs – Tribunal had a discretion to award costs under clause 20(4) of the Consumer Trader and Tenancy Regulation and rule 38(2)(b) of the Civil and Administrative Tribunal Rules - whether the Tribunal erred in law in failing exercise its discretion judicially and/or reasonably – Tribunal made findings on no evidence or findings were not supported by the evidence – denial of procedural fairness – Tribunal found to have made an error in legal principle in the exercise of its discretion – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Consumer Trader and Tenancy Tribunal Act 2001 (NSW)(repealed) Home Building Act 1989 (NSW) Land and Environment Court Act 1979 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Consumer Trader and Tenancy Tribunal Regulation 2009 (NSW)(repealed) Cases Cited: Amad El Ahmad t/as Cars for Everyone v Imelda Reyes [2015] NSWCATAP 50 Antonio v Ian Cubitt's Classic Home Improvements Pty Ltd [2016] NSWCATAP 37 CPD Holdings Pty Limited v Baguley [2016] NSWCATAP 103 Gallo v Duflou [2014] NSWCATAP 115 Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 Latoudis v Casey [1990] 170 CLR 534 Micallef v ICI Australian Operations Pty Ltd [2001] NSWCA 274 Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744 Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 265 NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Owner's – Strata Plan No 61162 v Lipman; the Owners Strata Plan No 61162 v Building Insurer's Guarantee Corporation [2014] NSWSC 622 Saurine v Coral Homes Qld Pty Ltd [2015] NSWCATAP 147 Thompson v Chapman [2016] NSWCATAP 6 Waterford v Commonwealth (1987) 163 CLR 54; 71 ALR 673; 12 ALD 741 Category: Principal judgment Parties: Sandra Wickham (appellant) Craig Tiffney (respondent) Representation: Counsel: R Zikmann (Appellant)