John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982

Supreme Court New South Wales

Medium Neutral Citation: John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982 Hearing dates: 13 July 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Extend time for the filing of the Summons to 25 November 2016.

(2) Leave to appeal in respect of the judgment of the Appeal Panel of the NSW Civil and Administrative Tribunal given on 11 April, 2016.

(3) Appeal upheld.

(4) Remit the proceedings to the Appeal Panel to vary its judgment to provide for payment by the Defendants to the Plaintiff for carrying out the order of the Appeal Panel to install the kitchen.

(5) Otherwise dismiss the appeal.

(6) There be no order as to costs of the proceedings in this Court to the intent that each party should pay his and their own costs. Catchwords: APPEALS – judicial review – appeal from NSW Civil and Administrative Tribunal Appeal Panel –on question of law only with leave - installation of kitchen – specific performance of contract ordered by Appeal Panel – Appeal Panel gave no concomitant order for Defendant to pay for kitchen upon it being installed – whether denial of procedural fairness by failing to respond to Plaintiff's applications to amend orders – failure to give reasons – failure to respond to Plaintiff's substantial, clearly articulated argument – constructive failure to exercise jurisdiction – appeal upheld – matter remitted to Appeal Panel

COSTS – Appeal Panel made no order as to costs – s 60 Civil and Administrative Tribunal Act - whether special circumstances shown - whether costs should be awarded because proceedings alleged to have been brought for a collateral purpose – post-judgment conduct irrelevant to costs orders – proportionality – small amount in dispute – whether any reason shown for leave to be granted - leave to appeal refused – no order as to costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW Home Building Act 1989 (NSW) Cases Cited: AAMI Ltd v Ali [2012] NSWSC 969 Commonwealth of Australia v McCormack (1984) 155 CLR 273 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 John Peter Maiolo v Frank Chiarelli and Anor [2016] NSWCATAP 81 Maiolo v Chiarelli (No 2) [2016] NSWCATAP 219 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56 Category: Procedural and other rulings Parties: John Maiolo t/as M & N Peninsular Kitchens & Joinery (Plaintiff) Frank Chiarelli (First Defendant) Vicki Woodward (Second Defendant) Representation: Counsel: R Newell (Plaintiff) B Gelonesi (Defendants)