Vital Capital Investment Pty Ltd v Hoffmann [2019] NSWCATAP 254

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vital Capital Investment Pty Ltd v Hoffmann [2019] NSWCATAP 254 Hearing dates: 30 September 2019 Date of orders: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G.Sarginson, Senior Member Decision: The appeal is dismissed. Catchwords: APPEALS- procedure - claim that never received notice of hearing to determine the matter at first instance – procedural fairness – conflicting accounts about receipt of notice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Interpretation Act (NSW)1987 Cases Cited: None cited Category: Principal judgment Parties: Vital Capital Investment Pty Ltd (Appellant) Kent Hoffmann (Respondent) Representation: Solicitors: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 19/36350 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 15 July 2019 Before: M Eftimiou, General Member File Number(s): HB 19/20087

REASONS FOR DECISION

Overview 1. On 30 September 2019 we dismissed this appeal. These are our reasons for doing so. 2. The appellant appealed from an order made at the hearing in the Tribunal at first instance on 15 July 2019 that it pay the respondent $4,500.00 immediately. No stay of that decision was ordered. The amount remains unpaid. 3. The amount ordered to be paid was made up of a deposit paid by the respondent for the supply of an aluminium, double glazed door and window for use at his investment property, along with an amount attributed to loss of rent due to what was found to be the defective nature of what was supplied. 4. The order was made in the absence of any appearance at that hearing on behalf of the appellant. Written reasons dealing with the merits of the respondent's claim accompanied the making of the order. 5. In those reasons, the Tribunal concluded that a notice of the hearing was sent by the Tribunal to the appellant, the notice had not been returned, and that, accordingly, the Tribunal was satisfied the appellant had been served with the notice. 6. The appellant's sole ground of appeal was that there was procedural unfairness because, according to the appellant, it was not notified of the hearing on 15 July 2019 and was unaware that the hearing had been fixed to take place on that day. 7. For the reasons set out below, we do not accept that any procedural unfairness has occurred. 8. We treated the appeal as proceeding as of right on the basis that it raised a question of law as to the circumstances in which the decision might be set aside for procedural unfairness: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').