HIA Insurance Services Pty Limited trading as Home Owners Warranty v Kostas & Ors

[2008] NSWCA 297

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Notices of contention
3. › Application to strike out
4. › Whether contentions reasonably arguable
5. › Whether abuse of process
6. › Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(a), (c)
1. Practice and Procedure
2. › Appeals
3. › Statutory appeals on questions of law
4. › Scope of appeal under s 67(1) Consumer Trader and Tenancy Tribunal Act 2001 (NSW)
5. › Whether 'question with respect to a matter of law' includes questions of mixed fact and law
6. › Whether s 75A Supreme Court Act 1970 (NSW) widens power to find facts on appeal
1. Practice and Procedure
2. › Strike out applications
3. › Standard for striking out
4. › Whether additional costs of maintaining contentions justify strike out
5. › Whether arguable contentions should be permitted notwithstanding cost implications

Quick Take

The formulation 'a question with respect to a matter of law' in s 67(1) of the CTTT Act is arguably wider than 'on a question of law' in other statutes, and the contention that it extends to questions of mixed fact and law is reasonably arguable. The question whether s 75A of the Supreme Court Act 1970 (NSW) empowers the court to find facts once error of law is established on a s 67(1) appeal remains open.