Pozetu Pty Ltd v Alexander James Pty Ltd (No 2)

THE COURT: Judgment was delivered in this appeal on 12 August 2016. [1] It has since been drawn to the Court’s attention that the judgment of Sackville AJA did not differentiate between the role of the Administrative Decisions Tribunal (ADT) and the New South Wales Civil and Administrative Tribunal (NCAT) in the decision-making process that led to the decision of the Appeal Panel. The judgment as delivered contains references to the “Tribunal” and “NCAT” that are either incorrect or may be misinterpreted.

The applicant (Pozetu) commenced proceedings in the Retail Leases Division of the ADT, not NCAT. NCAT did not come into existence until 1 January 2014, [2] after the hearing in the ADT had been held, but before reasons were delivered in September 2014.

As a consequence of the oversight, the judgment contains a number of references to the “Tribunal” or “NCAT” that should be corrected so as to make it clear that the ADT was the Tribunal dealing with the matter at the relevant time. Some consequential changes are also required.

The errors in the judgment came about because of an accidental slip or omission, in that the commencement date of the NCAT Act was overlooked. There can be no controversy about the date the legislation came into force or the identity of the relevant Tribunal. Correction of the errors makes no difference to the reasoning or the outcome of the appeal. It is appropriate that the judgment be corrected pursuant to the slip rule. [3]

The following changes have been made to the Principal Judgment: