Ali v Revesby Metals Pty Ltd [2019] NSWCATAP 261

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ali v Revesby Metals Pty Ltd [2019] NSWCATAP 261 Hearing dates: On the papers Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member K Ransome, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – consumer guarantees - no substantial miscarriage of justice – no point of principle Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Intaz Ali (Appellant) Revesby Metal Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) I Kalouche, (Authorised Representative)(Respondent) File Number(s): AP 19/27512 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 February 2019 Before: D Ash, Member File Number(s): MV 19/10107

REASONS FOR DECISION 1. The appellant seeks leave to appeal from a decision of the Tribunal's Consumer and Commercial Division made in favour of the respondent rejecting the appellant's claim for the return of a deposit paid for a second hand motor vehicle. 2. In the case of an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal, under clause 12 (1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 the Appeal Panel only has a discretion to grant leave to appeal if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 at [76] it was said that a substantial miscarriage of justice may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. In his Notice of Appeal the appellant identified that he sought leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence. 2. Shortly before the hearing of the appeal, the appellant sought an adjournment of the hearing, or if an adjournment was not granted, for the matter to be determined on the papers, having regard to his written submissions. The respondent did not agree to the adjournment, but agreed the matter could be determined on the basis of the written material filed. In light of the consent of the respondent and being satisfied pursuant to s 50(2) of the CAT Act that the issues for determination in the appeal can be adequately determined in the absence of the parties by considering the material provided by them, we determined that a hearing can be dispensed with and the matter dealt with on the papers. 3. We have therefore had before us the appellant's Notice of Appeal and documents annexed to it filed on 13 June 2019 and the respondent's Reply to Appeal and annexed documents filed on 2 July 2019. No further documents were filed by either party in accordance with directions made by the Appeal Panel on 2 July 2019. 4. For the reasons which follow, we decided to dismiss the appeal.