Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1. The appellant appeals from:

1) the interlocutory decision of the Tribunal of 23 October 2023, whereby the Consumer and Commercial Division of the Tribunal (Tribunal) refused the appellant's application for an adjournment (Adjournment Application) of a hearing to be held that day (Interlocutory Decision); and

2) the decision of the Tribunal of 17 May 2024, in which the Tribunal ordered the appellant to pay the respondent $500,000 (Substantive Decision).

2. For the following reasons, we have not granted leave to appeal either decision, with the consequence that both appeals are otherwise dismissed. As to the ground of appeal agitated by the appellant that he was denied procedural fairness at the hearing of the matter, the appeal is dismissed.

Appellant's materials before the Appeal Panel

Notice of Appeal

Interlocutory Decision

3. The appellant submits Tribunal erred in refusing his application to vacate the final hearing set down for 23 October 2023. He submits that that refusal resulted from a denial of procedural fairness and gave rise to a substantial miscarriage of justice.

4. The appellant submits that:

1) the Tribunal erred in failing to take into account all the relevant facts and circumstances of the matter in the context of the guiding principles under s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act);

2) the decision was not fair and equitable;

3) the decision was against the weight of evidence;

4) the Tribunal erred in failing to exercise its discretion to vacate the hearing on 23 October 2023 on the Tribunal's own motion, which resulted in a denial of procedural fairness and gave rise to a substantial miscarriage of justice.

5. In support of this final contention, the appellant submits that the Tribunal was aware that the appellant:

1) became self-represented immediately prior to the commencement of the hearing;

2) had suffered tragic family circumstances and was contemporaneously affected by mental health illness;

3) had limited English language skills;

4) was being required to defend the matter in which $500,000 was being claimed from him without a defence, any witnesses, any evidence and any representation,

5) or should have been aware that a fair hearing of the real issues in dispute could not have taken place in all the circumstances.

6. These grounds of appeal were refined somewhat by the appellant's submissions of 14 August 2024 prepared by his counsel Mr A Byrne. The main difference between the grounds of appeal agitated in the Notice of Appeal and in the submissions was that the s 36 ground was no longer pursued.

Substantive Decision

7. The appellant's grounds of appeal may be summarised as follows:

1) the appellant was denied procedural fairness;

2) the Tribunal provided the appellant with no material assistance;

3) the Tribunal took into account matters that were not in evidence;

4) the Tribunal selectively referred to and relied upon, in support of conclusions against the appellant's interests, materials not tendered or read by the appellant at the final hearing, such as the "Melick" report referred to at [2] and [3] of the Substantive Decision;

5) the Tribunal drew conclusions or inferences on the basis of those materials, notwithstanding they had not been tendered;

6) the Tribunal also made findings, apparently on the basis of its understanding of the procedural history of the matter (including, for example, as to opportunities afforded Mr Abdallah to attend to defects, and reasons for delays);

7) the Tribunal accepted evidence adduced by the respondent concerning defects and damages without any explication in the Substantive Decision for that acceptance, beyond, apparently the absence of any responsive evidence from the appellant.

8. Again, these grounds were refined in the appellant's submissions of 14 August 2024, being reduced to:

1) a failure to afford procedural fairness; and

2) the Tribunal's findings not being properly supported by evidence.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193cc9deff29f5b5925d5522)

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