K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 Hearing dates: 3 July 2018 Date of orders: 04 June 2019 Decision date: 04 June 2019 Jurisdiction: Appeal Panel Before: F Corsaro SC, Senior Member D A C Robertson, Senior Member Decision: 1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the orders made by Senior Member G Meadows on 9 April 2019 dismissing the application.

4. Remit the application to the Consumer and Commercial Division of the Tribunal for hearing on such evidence as the Tribunal may permit.

5. Any application in respect of the costs of the appeal to be made by written submissions filed and served within 14 days of the date of publication of this decision. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act.

6. If either party files submissions in accordance with order 5 above the other party may file and serve submissions in response within a further 14 days. Such submissions should address the question whether the application for costs can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. Catchwords: Appeal – delay – dismissal of claim for want of prosecution –discretion under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) – lack of evidence as to required delay– appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 Champion Homes v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Hoser v Hartcher [1999] NSWSC 527 House v The King (1936) 55 CLR 499 O'Neil v T & I Engines Pty Ltd [2015] NSWCATAP 77 State of New South Wales v Plaintiff A [2012] NSWCA 248 Category: Principal judgment Parties: K & J Vision Pty Ltd (Appellant) Jows Construction Pty Ltd (Respondent) Representation: Counsel: J Drummond (Appellant) J Granger (Respondent)