TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TAG Aviation Pty Ltd v Kirk [2017] NSWCATAP 41 Hearing dates: 16 February 2017 Date of orders: 16 February 2017 Decision date: 24 February 2017 Jurisdiction: Appeal Panel Before: Wright J, President M Harrowell, Principal Member Decision: 1. Insofar as leave is required, both parties have leave to be legally represented on this appeal. 2. Leave to amend paragraph 5B of the Notice of Appeal so that it is in the form of the paragraph 5B of the Amended Notice of Appeal filed on 21 December 2016 is granted. 3. The appeal is allowed. 4. Order 1 made on 20 October 2016 in the Tribunal at first instance is set aside. 5. Remit the matter to the Consumer and Commercial Division and for the purposes of the remitted proceedings, the Appeal Panel directs: (a) Mr Kirk is to give to the Tribunal and Tag Aviation Pty Ltd points of claim and any evidence (including expert evidence, if any) to be relied upon on or before 9 March 2017. (b) Tag Aviation Pty Ltd is to give to the Tribunal and Mr Kirk points of defence and any evidence (including expert evidence, if any) to be relied upon on or before 30 March 2017. (c) Mr Kirk is to give to the Tribunal and Tag Aviation Pty Ltd any material in reply on or before 7 April 2017. (d) The matter be listed for hearing on a date not before 14 April 2017. 6. Each party pay its own costs of this appeal. Catchwords: CONTRACTS – general contractual principles – where contract did not contain an express term for time of performance – whether contract void or unenforceable for uncertainty – whether term requiring performance within a reasonable time should be implied ADEQUACY OF REASONS – failure of Tribunal below to give adequate reasons – error of law established – relevant evidence not presently available to the Appeal Panel – matter remitted for new hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 60, 62, 80 Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A Cases Cited: BGL Operations Pty Ltd v Allied Express Transport Pty Ltd [2011] NSWCA 41 Calvo v Ellimark Pty Ltd [2016] NSWCA 13 Canning v Temby (1905) 3 CLR 419; [1905] HCA 45 Collins v Urban [2014] NSWCATAP 17 DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423; [1978] HCA 12 Hillam v Iacullo [2015] NSWCA 196 Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 509 Reid v Moreland Timber Co Pty Ltd [1946] HCA 48; [1946] 73 CLR 1 Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 566 Ryder and Anr v Frohlich and Anr [2004] NSWCA 472 Summers v The Commonwealth (1918) 25 CLR 144; [1918] HCA 33 Texts Cited: Carter on Contract: J W Carter, LexisNexis, Category: Principal judgment Parties: TAG Aviation Pty Ltd (Appellant) Philip Kirk (Respondent) Representation: Counsel T Crispin (Appellant) P Batley (Respondent)