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[2026] NSWSC 383
General information, not legal advice.
Supreme Court of NSW
2026-04-20
Schmidt AJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ge v King [2026] NSWSC 383
Hearing dates: 3 February 2026
Date of orders: 20 April 2026
Decision date: 20 April 2026
Jurisdiction: Common Law
Before: Schmidt AJ
Decision: 1. The appeal is dismissed;
2. Unless the parties approach within 14 days, with short written submissions, the Court’s order as to costs will be that Mr Ge and Ms Chen bear Ms King’s costs, as agreed or assessed.
Catchwords: APPEALS — leave to appeal — whether leave required — leave not sought — appeal from Local Court — s 40 of the Local Court Act 2007 (NSW) — whether s 54 of the Civil Liability Act 2002 (NSW) applies — whether alleged offence under Workers Compensation Act 1987 (NSW) committed — issue not raised at first instance — whether issue involves a question of mixed law and fact — whether issue depends on factual findings which cannot be made on appeal — leave required not sought and would not be granted
APPEALS — whether Part 1A of the Civil Liability Act 2002 (NSW) ought to have been applied — whether new legal issue can justly be raised on appeal — appeal dismissed
Legislation Cited: Civil Liability Act 2002 (NSW), pts 1A, 2, ss 5, 5A, 5B, 11, 51, 54
Civil Procedure Act 2005 (NSW), ss 56, 58
Evidence Act 1995 (NSW), s 140
Local Court Act 2007 (NSW), ss 39, 40
Residential Tenancies Act 2010 (NSW), ss 30(1), 52, 63
Workers Compensation Act 1987 (NSW), ss 145, 155
Workplace Injury Management and Workers Compensation Act 1988 (NSW), Sch 1
Uniform Civil Procedure Rules 2005 (NSW), rr 42, 51.53
Cases Cited: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Beatie v Reid [2002] NSWSC 1088
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Callan v Medical Board of Australia [2024] NSWSC 336
Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337; [1982] HCA 24
Coulter v The Queen (1988) 164 CLR 350; [1988] HCA 3
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17
Fletcher v Furnance [2008] NSWSC 132
Ge v King [2025] NSWSC 1215
Geelong Building Society (in liq) v Encel [1996] 1 VR 594
Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59
Holcombe v Coulton (1988) 17 NSWLR 71
Houghton v Potts & Anor (No 2) [2022] NSWSC 1778
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
King v Ge (Local Court (NSW), Nash LCM, 18 November 2024, unrep)
Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Millichamp v Pharmacy Platform Pty Ltd [2024] NSWSC 1236
Moschi v Lep Air Services; Lep Air Services v Rolloswin [1973] AC 331
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others (2022) 277 CLR 115; [2022] HCA 39
Rose v Tunstall [2018] NSWCA 241
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410; [1978] HCA 42
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Category: Principal judgment
Parties: Guoging Ge (First Plaintiff)
Shaoying Chen (Second Plaintiff)
Natalie King (Defendant)
Representation: Counsel:
AA Wilson (First and Second Plaintiffs)
M Pesman SC and TJ Davy (Defendant)
Solicitors:
Hicksons | Hunt & Hunt Lawyers (First and Second Plaintiffs)
Bay Legal Pty Ltd (Defendant)
File Number(s): 2024/00467367
In November 2024 Mr Ge and Ms S Chen, the landlords of a property at Belleview Hill, were ordered to pay $48,000 to their former tenant, Ms King: King v Ge (Local Court (NSW), Nash LCM, 18 November 2024, unrep). Nash LCM, as his Honour then was, having found that Ms King had established their claimed breach of the parties’ written residential tenancy agreement, which was regulated by the Residential Tenancies Act 2010 (NSW).
Ms King’s claim arose from an injury which had been suffered by a nanny, Ms Chen, when an electric blind fell off the wall shortly after the family moved into the premises. The blind striking Ms Chen and causing injury which required surgery.
In the Local Court there was no issue that Ms King had incurred the costs she pursued. Ms Chen having successfully made a workers compensation claim, which later resulted in Ms King agreeing to make a payment to the nominal insurer, Insurance and Care NSW, Icare, in accordance with the terms of a deed which was not in evidence.
That Ms King was entitled to pursue the landlords for what she had paid, as she did, as the claimed result of the alleged breaches of the lease, was not disputed in the Local Court.
On their appeal the landlords sought to advance a different case.
“First of all, can a landlord be held liable under a residential tenancy agreement for a latent defect? In other words, in the absence of notice of the said defect, either express or constructive; and secondly, can a tenant under a residential tenancy agreement claim damages for breach of contract where those damages arise as a result of illegal conduct?”
These issues were both submitted to raise pure questions of law, which the landlords were entitled to pursue on appeal as of right under s 39 of the Local Court Act 2007 (NSW). That was disputed but, still, leave was not sought.
In advancing the first issue, the landlord’s case was that his Honour had erred in failing to adhere to provisions of the Civil Liability Act 2002 (NSW) which applied to Ms King’s claim: Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [40]-[41], applied in Houghton v Potts & Anor. (No 2) [2022] NSWSC 1778 at [218]. Part 1A of that Act applying to a class of damages which result from a failure to exercise reasonable care and skill, irrespective of how the claim has been formulated.
It should be observed that in Houghton no liability for the injuries suffered was found, with the result that it was unnecessary to resolve the claim there brought in contract, in addition to the negligence claim: at [216-[217]. What had been there pursued having been a failure to exercise reasonable care and skill: at [218]. Reference being made to Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56, where what was in issue did not turn on the condition of the premises, which were fit for human habitation: at [33].
The landlords accepted that such a failure was not referred to in Ms King’s statement of claim. But contended that what she had pleaded at [21]-[23] of her statement of claim did advance such a failure.
This was disputed, Ms King there having pleaded:
“21 The Plaintiff alleges that the Defendants breached the terms of the Agreement by failing to provide the premises in a state fit for habitation and has breached the obligation to provide to the Plaintiff premises for their quiet enjoyment.
22 The Defendants have failed to do the following:
a. Ensure that the electric blinds were installed and fixed to the required standard;
b Make reasonable inspections and guarantees to the safety and functionality of the blinds; and
c. Provide premises fit for habitation and maintained to the required degree under the Residential Tenancies Act 2010 obligations.
23 The Defendants' failure to ensure the reasonable state of repair of the premises, including the installation and inspection of fixtures such as the electric roller blinds, amounts to a breach of an essential term of the Agreement.”
The landlords submitted in relation to the second issue that his Honour had erred in ordering them to pay what Ms King had pursued, that not being recoverable from them, given other provisions of the Civil Liability Act: s 54.
Neither argument had been advanced in the Local Court, where the landlords had appeared unrepresented.
A question also arose at the hearing as to whether the landlords’ case in relation to the second ground could be resolved by this Court, as they sought. It not being empowered on their appeal under s 39 of the Local Court Act to make any primary findings of fact. Nor could it engage in a fact-finding process on the merits of the case: Rose v Tunstall [2018] NSWCA 241 at [31]-[32].
But there was no question that what the landlords sought to pursue raised the limitations on what can be pursued on an appeal, explained in Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 at [37]. Namely, that:
parties do not have an unrestricted right to present a new argument for the first time on appeal;
a new point cannot be taken on appeal where, had the issue been raised in the court below, evidence could have been given which “by any possibility could have prevented the point from succeeding”: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12; and
when a pure question of law, even one which was not even obliquely raised at first instance, is pursued, “there are occasions when it is appropriate to let that be advanced for the first time on appeal”. An example being Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62, where the point belatedly taken would inevitably arise in future disputes between the same parties.
That the two issues that the landlords pursued fell into any of these categories was disputed.
I have concluded that the landlords do require leave to appeal. The second ground, pressed on the basis of requirements of the Workers Compensation Act 1987 (NSW), clearly turning on mixed questions of fact and law, not a pure question of law, as they contended.
Further, that such leave cannot justly be granted. Not only was it not sought, these requirements were not relied on in the Local Court. Further, what was urged depends on findings of fact which turn on evidence which was not led, and which this Court cannot make on this appeal.
The question of the application of Part 1A of the Civil Liability Act to Ms King’s claims, which was also not argued in the Local Court, also does not fall within the circumstances discussed in Cappello*.* With the result that the landlords should also not be permitted to advance arguments about its operation, for the first time on appeal, given what the parties actually joined issue over in the Local Court about the contractual breach which Ms King successfully pursued.
The result is that the appeal must be dismissed.
Had a different view been available, the matter would have had to be remitted to the Local Court to be reheard, which is a consideration which also lends force to the conclusions which I have reached.
In issue was whether:
Leave to appeal was required;
The appeal fell within the circumstances discussed in Cappello*,* which permit new points to be taken on appeal in limited situations;
If they did, whether:
(a) Part 1A of the Civil Liability Act applied to Ms King’s claim. That turning on whether the breach of the lease which she pursued turned on an allegation of negligence, as that concept is defined in s 5 of that Act; and (b) The evidence established that Ms King had breached requirements of the Workers Compensation Act which precluded her from being awarded the damages ordered, given her employment of the nanny who was injured.
Ms King resisted the appeal, contending that it raised mixed questions of fact and law which required the Court’s leave under s40 of the Local Court Act. Leave which the landlords had not sought and should not be granted.
Still the landlords did not seek any leave, disputing that they required it. Contending that they only pursued errors of law which they permissibly advanced on facts which had been found, or were not in issue, in the Local Court. That was also disputed.
Ms King relied on the affidavit evidence of her solicitor Mr Mitchell, which was admitted over objection as being relevant to the questions raised by Capello. This affidavit annexed the Chinese language agreement she had entered with Ms Chen and the Chinese agency which had supplied her services, which was not in evidence in the Local Court. On which she relied to resist the landlord’s reliance on s 54 of the Civil Liability Act*.*
In response to that evidence, also over objection, an English translation of that agreement was admitted. It also being relevant to that issue. On which the landlords relied to advance the first issue.
They contending that both issues raised only pure questions of law which the Court was empowered to determine on appeal, which it would uphold, because the proceedings in the Local Court had been misdirected. On Ms King’s approach it was the landlords approach on appeal which was misdirected, she having successfully pursued their breach of the lease, as she had.
In issue at the trial was the construction of the lease and whether the blind which struck Ms Chen had detached from the wall, as Ms King claimed. No evidence was called from Ms Chen, who had returned to China after the surgery. And the contract under which her services had been provided was not in evidence. Nor was the deed Ms King had entered with Icare.
Ms King’s evidence was challenged, but it was accepted. It included that she had not witnessed Ms Chen being injured, but had heard her scream and then ran to Ms Chen’s aid from another room. She then finding that the blind had fallen off the wall and that Ms Chen had been injured. She then assisting Ms Chen to deal with her injury. And that other electric blinds installed in other rooms also fell in following days, with the result that they had to be reattached.
Ms King was cross-examined with the assistance of an interpreter.
Mr Ge and Ms S Chen had made statements in similar terms, which dealt with how the blind had been installed before the premises were rented; that an inspection report had not identified any fault; and the steps later taken to reinstall the blinds which had fallen.
His Honour gave ex tempore reasons for his conclusion that Ms King had proven her case. He began by explaining that the premises were leased, the case turning on “liability for damages incurred as a result of an injury Ms Chen suffered as a result of an electric roller blind detaching from its wall mount or bracket and falling onto her finger”: p 1.
His Honour noted that in addition to the lease agreement, ss 52 and 63 of the Residential Tenancies Act applied, which he quoted. He then explained Ms King’s claim that the landlords had breached cl 19.1 and 19.6 of the lease, which required them to ensure that the premises were fit to live in and that statutory obligations, including as to safety, had been complied with.
His Honour explained the circumstances in which it was claimed the breaches had occurred and how the landlords pleaded their defence:
“The defendants’ defence to that claim is described in the pleading filed 7 December 2023 in the following way:
‘1. We did not have knowledge of any defects of the electric roller blinds, nor could we have reasonably have been expected to identify the defects. The electric roller blinds at 6B March Street, Bellevue Hill were newly installed by Noble Blinds in August 2021.
- We do not know how the electric roller blinds detached and how the nanny cut her finger on the blinds.
- We did not think there was anything defective in the blinds. Noble Blinds said:
‘Blinds falling down is very rare. Potentially, these blinds fell as the doors windows were open when they were rolled down or they were catching on some of the tenant's belongings, which prevented them from rolling straight.’”
a) Ensure that the electric blinds were installed and affixed to the requisite standard;
b) Make reasonable inspections and guarantees to the safety and functionality of the of the blinds under section 63 of the Residential Tenancies Act; and
c) Provide premises fit for habitation and maintain to the required degree under section 52(1A) of the Residential Tenancies Act 2010 obligations.”
His Honour also explained the evidence given in Ms King’s reply affidavit about the entry condition report on which the landlords relied, which she was given but had not been asked to sign; faults she had to pursue after she took up residence; what was said when the fallen blind and later other blinds which had also fallen were inspected; that other blinds were taken down as a precaution before they were replaced; and her view, as a result, that the residence had not been fit for occupation. He also referred to records which evidenced the workers compensation claim and a certificate issued to Ms Chen about her fitness.
His Honour also explained the short oral evidence Ms King gave, both in chief and in cross-examination, about the blinds that failed and how they had operated, while she was in residence.
His Honour then explained the affidavits, in identical terms, which Mr Ge and Ms S Chen had sworn, about which he noted no issue had been taken by Ms King, as plainly could have been. With the result that only Mr Ge had been cross-examined.
His Honour noted that it was agreed that no submission would be made about that forensic decision, with the result that nothing of any substance turned on Ms S Chen’s evidence.
His Honour noted that Mr Ge’s affidavit explained how the tenancy agreement had been entered, and the January 2022 condition report had been provided, the blinds having been installed in August 2021. And that Mr Ge had himself operated the blinds a number of times after they were installed, with the result that he did not know and could not reasonably have known that they had any latent deficiencies.
Mr Ge also said that after being notified of the fallen lounge room blind, an installer had put it back up, but was unable to determine how it had fallen. He was advised that a blind later reinstalled in a bedroom could have fallen because a window was open, causing the blind to catch, or that belongings had prevented it from rolling straight. Emails sent to him by the blind company were attached.
On Mr Ge’s evidence, on the landlords’ case the result was that they were not on notice that the house was hazardous to occupy because of a defect in the blind.
Nash LCM then observed that the case turned on the proper interpretation or construction of the lease agreement: at p 9. Incorporating into his reasons by reference, observations in:
Millichamp v Pharmacy Platform Pty Ltd [2024] NSWSC 1236 where, at [34]-[35], Rothman J explained:
(a) The Court’s function being “to ascertain and give effect to the intention of the parties, objectively obtained from the terms of the contract or deed”, citing Lord Diplock’s explanation of fundamental conceptual aspects of contract in Moschi v Lep Air Services; Lep Air Services v Rolloswin [1973] AC 331 at 346-7. (b) The basic principle which the law of contract seeks to enforce, being “that a person who makes a promise to another ought to keep his promise”, provided that the promise is made in the form of a deed, or for consideration. With the remedy for breach of such a promise including compensation for loss sustained as a result of the failure to perform the obligation.
(a) Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35], discussing how the meaning of the terms of a commercial contract is to be determined by reference to what a reasonable businessperson would have understood those terms to mean. The relevance of this is not immediately apparent, but nothing turns on this. (b) Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 where, at [46]-[51], it was pertinently explained that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract), and purpose. (c) Ordinarily, this is possible by reference to the contract alone and, if the contractual expression is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) not being able to be adduced to contradict its plain meaning. It being where there is a constructional choice to be made that recourse to objective events, circumstances and things external to the contract can be necessary. With evidence of the parties’ statements and actions reflecting their actual intentions and expectations being inadmissible. (d) Realestate.com.au Pty Ltd v Hardingham and Others; RP Data Pty Ltd v Hardingham and Others (2022) 277 CLR 115; [2022] HCA 39 where, at [43]-[44], it was explained that parties’ contractual rights and liabilities are determined objectively. The concern being “not with the real intentions of the parties, but with the outward manifestations of those intentions”. The meaning of the terms of a contractual document having to be determined by what a reasonable person would have understood them to mean: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179; [2004] HCA 52 at [40]. (e) A person who signs a contract conveying a representation that the person has read and approved its terms or is willing to take the chance of being bound by its contents. If the document on its face appears to be a complete contract, extrinsic evidence not being able to be adduced to subtract from, add to, vary or contradict those terms, except in limited circumstances. “And a term will be implied only if, among other things, it is necessary to make the contract work”: Realestate.com.au at [44].
His Honour gave detailed reasons for concluding that Ms Chen was injured by the electric blind detaching from the wall, despite evidence not having been called from her. Critically, that being supported by Ms King’s unchallenged evidence that other blinds in the house also detached and fell to the floor in the following days. Concluding that this made the premises not fit for habitation, regardless of proof of the precise fault or cause within the structure of fixing the blinds to their brackets: at p 10.
His Honour concluded that direct evidence from Ms Chen was not necessary to establish that she had been injured by the blinds which had fallen in the loungeroom. Accepting that the landlords, who were unrepresented, had not sufficiently developed or relied on any persuasive Jones v Dunkel inference which may have been relevant. Taking the view that their assertion in closing submissions that they suspected Ms Chen had tried to pull on the blinds, was speculative and could not be accepted, given all the other evidence.
His Honour noted that Ms King had advanced a breach of contract claim, not relying on any proof of tortious conduct. To prove that case, it was not sufficient for the evidence to establish that the blind had detached from the wall mounts, or brackets, striking Ms Chen. But he accepted that in combination, the evidence did establish the claimed breach of the lease, the premises not being fit for habitation: at p 10.
The contract required this to be determined at the time that Ms Chen was injured. He concluded that the evidence established, on balance, the immense safety risk to individuals within the premises, which arose from how the blinds were installed and could detach as they did: p 10. Regardless of the age of the occupants, which it was noted included children, the danger associated with them being struck by a falling electric blind depicted in the photographs was reasonably high: p 11.
His Honour considered that the location of the leased premises and its asserted high-end residential market did not put these premises into a different position than other rented premises in a different market. It was not necessary to prove the blinds had any particular or necessary function for privacy protection. Their provision by the landlord resulted in an obligation to ensure that the premises remained fit for habitation, which they were not: p 11.
As a result, the premises were also not in a reasonable state of repair, having regard to their age, rent payable and respective life. This was established by the blinds inexplicably detaching from their wall mounts or brackets and falling to the ground: p 11.
His Honour concluded that the landlord’s absence or lack of notice or knowledge of the defects in the blinds did not alter the contractual obligation to provide premises in a reasonable state of repair and fit for habitation. There being no express or necessarily implied condition in the lease that the landlord have prior notice of a defect, to establish the claimed breaches: p 11.
The landlords’ case included that:
Ms King had made admissions in her statement of claim and evidence on which they were entitled to rely, as well as on undisputed evidence, despite no factual findings about them having been made in the Local Court;
they establishing that Ms Chen was a worker for whom Ms King had an obligation to maintain a workers compensation policy;
Ms Chen had successfully made a claim, the cost of which Icare had recovered from Ms King, as s 145 of the Workers Compensation Act permitted;
this establishing illegality, there being an implied term in the lease that if Ms King were to engage a nanny as an employee or deemed employee to work in the premises, she would ensure that the worker was insured for the purpose of workers compensation: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 at 219; [1997] HCA 17.
the general rule being that by implication, every party agreed to do all things necessary to enable the other party to have the benefit of the contract;
the result of the breach of the Workers Compensation Act being that the lease had been performed in a manner which that Act prohibited; and
although the lease was not illegal or entered for an illegal purpose, it was illegal for Ms Chen to have worked in the absence of workers compensation insurance: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 432; [1978] HCA 42, where the impact of a statutory provision which makes conduct unlawful on the enforceability of the contract was explained.
The landlords also contending that the appeal involved the application or extension of the fourth way identified in Yango by which the enforceability of a contract may be affected: because “The contract, although lawful according to its own terms, may be performed in a manner which the statute prohibits”: at 413.
With the result that the Local Court should not have required them to indemnify Ms King for the costs she had incurred, given her failure to have obtained the required workers compensation insurance.
That was disputed. As was this Court’s power to extend the Yango principle relied on in the way that the landlords sought.
Ms King’s case being that the lease, made in the standard terms provided by the Residential Tenancies Act*,* was not unlawful. Any failure to obtain workers compensation for a nanny who worked at the premises being incapable of rendering the lease unlawful, or precluding its enforcement.
I am satisfied that this issue, so advanced, requires the landlords to seek and obtain the leave which they did not pursue.
Section 39 of the Local Court Act gives a party dissatisfied with a judgment of the Local Court the right to appeal to this Court on a question of law. Section 40 permits such a party to appeal on a ground that involves a question of mixed law and fact only with the Court’s leave. The leave requirement being “a means of enabling the court to control in some measure the volume of appellate work requiring its attention”: Coulter v The Queen (1988) 164 CLR 350 at 356; [1988] HCA 3.
I am satisfied that what the landlords seek to pursue on appeal in respect of the requirements of the workers compensation regime does require the Court’s leave. Raising, as this ground does, mixed questions of fact and law and their case depending on factual findings which have not been made.
The landlords relied on s 54 titled ‘Criminals not to be awarded damages’, appearing in Part 7 of the Civil Liability Act, which relevantly precludes an award of damages if the court is satisfied, that:
“(a) the … injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.”
Part 7 applying to civil liability of any kind for “personal injury damages”: s 51(1). This being widely defined in s 11 to mean “damages that relate to the death of or injury to a person”.
The landlords relied on Ms King’s failure to take out workers compensation insurance to establish that she had committed a “serious offence”, that being defined to mean “an offence punishable by imprisonment for six months or more”: s 54(3).
But the relevance of s 54 was disputed, given that it was Ms Chen, not Ms King, who was injured; that Ms Chen was not the subject of the proceedings and did not pursue any damages against the landlords; and that the landlords alleged that it was Ms King, not Ms Chen, whose conduct had resulted in the commission of a serious offence under the Workers Compensation Act*.* That is by Ms King having been obliged, but not having taken out. workers compensation insurance for Ms Chen.
Despite the landlord’s reliance on s 54 of the Civil Liability Act, I am satisfied that they require, but could not justly be granted, the leave for which s 40 of the Local Court Act provides, in order to pursue this aspect of their appeal, even if they had sought it.
It is settled that an application for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Where small claims are involved, it being important that there be early finality in determination of litigation, because otherwise the costs involved are likely to swamp the money sum involved in the dispute: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 at [22]; and Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.
This is such a case.
It is also ordinarily only appropriate to grant leave to appeal matters “that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. That was not here established, all that the landlords pursued being “merely arguable”.
It is also settled that s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with “the dictates of justice” when making an order or direction “for the management of proceedings”, applies to a leave application: Be Financial Pty Ltd at [36].
One of the factors necessary to take into account is “the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction”: s 58(2)(b)(vi). Section 58, like s 56, identifying the overriding purpose of the being to facilitate the just, quick and cheap resolution of the real issues in the dispute. That recognising that questions of injustice are relative.
The claimed obligation to apply the requirements of Part 1A to Ms King’s claim was also not raised or addressed in the Local Court, that not having been raised by the defence or submissions advanced. Nor was it expressly referred to in the grounds of appeal, although Ms King accepted that the landlords contended that this issue was a necessary consequence of what they had pleaded on appeal.
The landlords thus claiming that the result of the failure to give the required consideration to Part 1A of the Civil Liability Act being that the proceedings in the Local Court had entirely miscarried. Despite which they still resisted the obvious consequence, if that were accepted, the matter having to be remitted, so that the parties could be heard on that issue.
I am also not persuaded that the landlords can justly raise this other new claim for the first time on appeal. Had it been raised below, the parties would have had to pursue a different approach to their cases. That the result would necessarily have been different to that arrived at, given what they did join issue over, does not necessarily follow.
The landlords’ case included that if Part A of the Civil Liability Act had been considered in the Local Court, the inevitable result would have been judgment in their favour, given that there was no evidence that they were, or ought to have been, aware of a risk that the blind could fail. That was disputed.
The landlords contended that the Residential Tenancies Act did not impose strict liability on a landlord in relation to premises being fit for human habitation: Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 379; [1997] HCA 39. It followed that Ms King’s claim could thus only succeed, if she had established negligence on their part.
This turning on evidence which established that the blinds had been installed in August 2024, less than five months before Ms Chen was injured, by a reputable company; that Mr Ge had operated them on a number of occasions when they appeared to be in good working order; and there having been no prior indication that they would fall. The evidence also establishing that they had taken reasonable steps to identify any risks to occupants, with the result that they had discharged their duty under the Civil Liability Act.
The landlords also relying on how negligence is defined in s 5 of the Civil Liability Act to mean “failure to exercise reasonable care and skill”. Section 5A(1) specifying that Part 1A “applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.”
Reliance also being placed on “injury” being defined in s 11 to include “impairment of a person’s physical condition”. Although it appears in Part 2 of the Act, titled “Personal injury damages”.
The view urged being that Ms King’s pleaded case had in reality pursued a claim in negligence. With the result that his Honour had been obliged, but had failed to apply Northern Sandblasting at 370-371, albeit it was accepted that this had not been drawn to his attention.
Negligence, as defined in s 5, being a category of conduct: Paul v Cooke at [40]. The result was that Part 1A of the Civil Liability Act applied to all claims for personal injury damages, “irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill”: Paul at [41]. That approach having been followed in Houghton v Potts & Anor (No 2) [2022] NSWSC 1778 at [218].
His Honour had thus erred in law in concluding that because Ms King pursued a claimed breach of contract, it was enough for her to prove that the blind had detached from the wall, in the way he found. And that since no tortious conduct was alleged or found, the breach she established provided no proper basis for the finding that the premises were not fit for habitation, as the lease required.
“in relation to defects which are not present at the commencement of a lease but develop during its term, a landlord's duty extends only to remedying those defects of which he or she is or ought to be aware. In practical terms, that may mean that the duty is confined to remedying those defects which are notified by the tenant or by members of his or her household. However, different considerations apply in the case of defects which are present at the beginning of a lease”
That was disputed, Ms King’s case being that what was there observed was concerned with s 63 of the Residential Tenancies Act, not the terms of the lease on which her claims were pursued. The blind having failed so shortly after she had taken up residence, at a time when a need for maintenance had not arisen, not in any event attracting these observations.
Ms King also contended that the landlords misrepresented both the parties’ pleadings and the basis on which they advanced their cases in the Local Court, she not having pleaded any negligence.
It was accepted that some claims brought in contract would attract s 5A. For example, if the claim pursued concerned the breach of an implied term to exercise reasonable care and skill, as the result of negligence. In which event the claim had to be treated as if it was brought as a claim in negligence: Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 at [79].
But hers was not such a claim.
This explained the pleaded cases not referring to negligence or breach of duty, and what was put in issue in the Local Court not depending on the landlords’ knowledge that the blinds were not properly affixed. Nor on the law of negligence. But on whether the evidence had established that the landlords had breached the contractual requirement to ensure that the premises were fit for habitation. That not being a matter with which the law of negligence is concerned.
As a result, the case she had pursued in the Local Court could not attract Part 1A of the Civil Liability Act, with the result that the new argument only advanced by the landlords on appeal was misdirected.
The breach of the lease his Honour found on the evidence had properly sounded in damages, given what the parties had joined issue over. The requirements of the lease and that it had been breached, having been established by the evidence which was accepted, despite the broader pleading of her statement of claim.
Her claims thus did not fall within the statutory definitions the landlords relied on. Ms King never having alleged the existence of a duty of care, or its breach as the result of the want of due care and skill in the performance of the landlords’ obligations. Her straightforward claim in contract having rather been that the landlords had failed to comply with their contractual obligation to provide the premises in a condition fit for occupation and in an appropriate state of repair. That not depending on any allegation of negligence.
Nor had she ever pleaded or pursued a claimed failure to exercise reasonable care or even that a duty of care existed, which the landlords had breached. She having chosen, instead, as she was entitled to do, to pursue a straightforward claim of breach of the contractual obligations which the landlords owed her.
The landlords’ defence in the Local Court was based on them not being aware of any defect in the fitting of the blinds and the evidence not having established what had caused the blind which struck Ms Chen to fall.
The defence failed, Ms King’s evidence having been accepted. Despite Mr Ge’s evidence that he had himself operated the blind, and the landlords relying on the August 2024 entry condition report they had provided to Ms King, the day before she and her family moved in, in January 2025, which she had not signed.
Ms King’s case was that because she had not signed the report, the landlords were not entitled to rely on it, as they sought to do. Section 30(1) of the Residential Tenancies Act providing that a condition report is only presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report, if it was signed by both parties.
There was no issue that the report had not been signed by Ms King. She gave evidence about the actual condition of the premises, the blind which fell, striking Ms Chen shortly after she moved in, as well as others which fell and also had to be reinstalled, which contradicted the report. Her evidence was accepted. With the result that the defence failed, his Honour finding that the landlords had breached cl 19 of the lease and Ms King was entitled to damages.
It must thus be accepted that what the parties joined issue over in the Local Court was a breach of the lease, which turned on the proper construction of cl 19.1, Ms King not having pursued any allegation of negligence or claimed failure to take care against the landlords.
What was disputed below turning on cl 19.1 of the lease, which critically required the landlords “to make sure that the residential premises are reasonably clean and fit to live in”. With specific provision also requiring that the premises:
“(a) are structurally sound, and
(b) have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used only for the purposes of storage or a garage, and
(c) have adequate ventilation, and
(d) are supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to, and use of appliances in, the premises, and
(e) have adequate plumbing and drainage, and
(f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities, and
(g) contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user.
Note 2. Premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings:
(a) are in a reasonable state of repair, and
(b) with respect to the floors, ceilings, walls and supporting structures-are not subject to significant dampness, and
(c) with respect to the roof, ceilings and windows-do not allow water penetration into the premises, and
(d) are not liable to collapse because they are rotted or otherwise defective.”
It follows that cl 19.1 did not make specific reference to blinds installed not being liable to collapse because they were defective. But Ms King’s case, that the blind which struck Ms Chen was defective was established by the way it fell off the wall, succeeded. Her evidence about the state of the premises establishing, his Honour concluded, that they were not fit to live in, given the other blinds which also fell off the walls. With the result the conclusion that the landlords had breached the lease.
The landlords did not challenge the factual findings on which the Local Court’s conclusion that they had breached the lease rested.
The landlords were litigants in person at first instance and represented in these proceedings. They are bound by the forensic decisions which they have made. They having resulted in the Local Court’s decision that their breach of the lease was established by Ms King’s evidence. That conclusion having been driven by the proper construction of the provision of the lease which had been put in issue, not any breach of duty or negligence.
That approach accorded with what was explained in Northern Sandblasting at 370-71, with my emphasis:
“In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First, the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition. But, as Cussen J pointed out, this is a rule of construction to be considered with the text of the particular lease, not a rule of law”
That explains why the issue in the Local Court turned on the construction of cl 19.1, which obliged the landlords to make sure that the premises were fit to live in. Whether its obligations had been complied with, turned on what the evidence established about the state of the premises, not the provisions of Part 1 of the Civil Liability Act. Nor on the law of negligence.
His Honour found that the blinds had not been properly affixed to the wall, with the result that the premises were not fit to live in and that the lease had been breached.
The landlord’s reliance on what was concluded in Northern Sandblasting, was thus misplaced. What was there in issue, unlike this case, having turned on a statutory obligation, there having been no written lease agreement whose text had to be construed.
What was raised for the first time on this appeal was that the claimed breach of the lease which Ms King successfully pursued in the Local Court, in truth, involved a claim of alleged harm resulting from negligence, despite how it was pleaded.
I am satisfied that cannot be accepted.
Further, that in all of the circumstances, the claimed requirement to apply Part 1A of the Civil Liability Act in resolving what the parties joined issue over, is not a matter which can justly be raised only for the first time on appeal, given the pleadings and what was pressed and resisted in the Local Court.
The claim Ms King pressed being damages incurred as the result of the landlords’ breach of the lease, the premises not having been fit for habitation because of the state of the blinds which fell. Which the landlords disputed, as they were entitled to.
Only on appeal did the landlords seek to contend that what they had joined issue over below actually turned on whether the defect which caused the blinds to fall was a latent one and not foreseeable and not one of which they knew or ought to have known.
Ms King’s statement of claim pleaded cls 19.1 and 19.6 of the agreement; s 52 of the Residential Tenancies Act; the detachment of the blind with resulting injury to Ms Chen; the breach of the agreement involved; and the damages she claimed she suffered as a result, that being supported by the later failure of other blinds and their replacement with a curtain.
I am satisfied that it must be accepted that what was so litigated in the Local Court resulted in his Honour resolving what was put in issue in relation to the alleged breach of the lease, entered into under the provisions of the Residential Tenanc**ies Act. His Honour correctly observing that no claim in tort had been pursued. The parties having joined issue, as a result, over whether the premises were in a state fit for habitation and provided Ms King with the quiet enjoyment she was entitled to have, given how the blinds fell soon after she took up residence, not having been properly secured to the wall.
The usual costs order is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42. That is an order that the landlords bear Ms King’s costs.
In the event that the parties wish to be heard on costs, they should approach within 14 days, with short written submissions.
For these reasons I order that:
The appeal is dismissed;
Unless the parties approach within 14 days, with short written submissions, the Court's order as to costs will be that Mr Ge and Ms Chen bear Ms King’s costs, as agreed or assessed.
**********
The name "Mitchelmore" should read "Mitchell" in paragraphs 101, 103, 104, 105, 108 and 110,
At paragraph 28, the word "Sand" should read "And" and the word "Nr" should read "Nor".
Ge
King
[1938] HCA 34
[1986] HCA 33
[2004] HCA 52
(1990) 169 CLR 279
(1977) 180 CLR 266
(1938) 60 CLR 336
(1982) 149 CLR 337
(1988) 164 CLR 350
(1986) 162 CLR 1
(2014) 251 CLR 640
(1997) 189 CLR 215
(1988) 166 CLR 18
(1988) 17 NSWLR 71
(2000) 205 CLR 166
(2015) 256 CLR 104
(1992) 67 ALJR 170
(1997) 188 CLR 313
(2013) 85 NSWLR 167
(2022) 277 CLR 115
(1950) 81 CLR 418
(2004) 219 CLR 165
(1985) 59 ALJR 481
(1988) 180 CLR 491
(1978) 139 CLR 410
The lease had to be read in light of the legislative scheme requiring the landlords to make the promises relied on. They being able to prudently take out landlord’s insurance to cover incidents of the kind in which Ms Chen was injured. They also had the right to pursue a cross-claim against the contractor or professional they engaged to install the blinds, with whom the tenant had no relationship.
His Honour also explained that he had not relied on other defects to arrive at these conclusions. Also accepting that Ms Chen not being a party to the proceedings was not relevant. The evidence not establishing that the blinds detached from the wall due to human error or intervention, having been operated by a remote device: p 12. The condition report was also not relevant, it not being capable of establishing that the blinds were safety installed, or did not present a hazard: p 13.
That Ms Chen was not a party to the lease was also not relevant, it being Ms King who pursued the breach of the lease and the loss and damage she claimed she had suffered as a result.
Ordinary day-to-day use of the blinds by the remote device could not necessarily establish any safety risk in its structure. While that could have met the threshold for a positive entry on the report the landlords relied on, the blinds could still have presented an inherent, unacceptable or latent safety risk.
That even if Ms King was in breach of the lease by permitting occupation of the premises by a greater number of people than the lease permitted, that had no impact on the landlords’ breach of the lease, which the evidence established. Even if that gave rise to a separate cause of action against Ms King.
There was no dispute about the quantum of Ms King’s damages. Nor any claim that they were not reasonably foreseeable. Or that Ms King would not have incurred them but for the blinds falling and causing Ms Chen injury, the resulting medical costs being the direct and foreseeable consequence of the breach of the lease.
As was the $8,000 insurance consultant’s fee, the landlords having not challenged their liability for this sum, in the event breach was established.
Neither party disputed the orders which his Honour proposed, with the result that they were then made.
On the appeal, there was no challenge to any of his Honour’s factual findings.
Also necessary to consider is that this Court will not order a new trial unless it appears that “some substantial wrong or miscarriage” has been occasioned. That reflecting “a principle of parsimony in requiring that the parties be put to the expense of a second trial”: Uniform Civil Procedure Rules 2005 (NSW), r 51.53; Be Financial Pty Ltd at [56].
Here no such injustice has been established.
The parties having rather had a fair opportunity to present their cases in the Local Court, where the landlords elected to appear unrepresented. Still, they are bound by the forensic decisions which they then made about the defence they pressed. That does not support them being given an opportunity to advance an entirely different defence on appeal, having since decided to take legal advice which has identified another possible argument which could have been advanced in the Local Court.
The leave the landlords require, having raised a new argument on appeal, may only be granted in exceptional circumstances after a case has been decided against a party. Parties ordinarily being bound by the way in which they chose to conduct their cases: University of Wollongong v Metwally (No 2) [1985] HCA 28 at [71]; (1985) 59 ALJR 481.
The landlords contended that this was such a case, relying on the principle that the Court will not aid those who engage in illegal conduct: Beatie v Reid [2002] NSWSC 1088 at [42]-[44], and Fletcher v Furnance [2008] NSWSC 132 at [47]-[50].
I am still satisfied that the required exceptional circumstances were not established by what was relied on.
Parties are often in the position the landlords find themselves in. Having chosen at trial to appear unrepresented and only later obtaining legal advice, as they did. Advice which reveals that they could have advanced a different case, which might have succeeded, had relevant evidence been led and submissions been successfully made.
The result, that they now seek to advance on appeal a case which could have been advanced at trial, given the matters on which they now seek to rely, is not exceptional.
The contract between the agency, Ms King and Ms Chen was not in evidence in the Local Court. Nor were the requirements of the Workers Compensation Act, any alleged breach, or the commission of any offence by Ms King then relied on.
The result was that no issue was there joined over the alleged breach of the Workers Compensation Act only raised on the appeal, with the result that no pertinent factual findings having been made. His Honour gave his reasons for the conclusions which he reached about what was put in issue. There then also being no dispute that the order which Ms King sought, should be made in her favour, once he concluded that the landlords had breached the lease agreement.
The result was that orders were then made in terms which were not disputed and his factual findings are not now challenged.
In the Local Court, Ms King was thus successful in recovering both what she had agreed to pay to Icare, as well as $8,000 she had incurred in engaging an insurance consultant, to assist her to deal with its claim.
On the appeal, the landlords changed their position entirely.
Contending that they ought not to have been made liable for the payments they were ordered to make, given the effect of s 54 of the Civil Liability Act, which precluded the Local Court from making the challenged order in Ms King’s favour. On which they had also not relied in the Local Court.
Then there was no issue that Ms King had not taken out a workers compensation policy; the costs of Ms Chen’s surgery had been met by Icare, after she pursued a workers compensation claim; that Icare took steps to recover the payment it made to Ms Chen from Ms King; and that Ms King had entered the deed which required her to pay Icare $40,000.
Ms King’s evidence included that she had asked both the agency and the landlords to pay for Ms Chen’s surgical expenses, which both had refused. Their communications were in evidence. The agency having indicated that it was a workers compensation matter. Ms King having understood that it was not she who had an obligation to take out such insurance.
The deed Ms King later entered with Icare was not in evidence and so its terms are unknown. There is no suggestion that she was then legally advised. The agreement she had earlier entered with the agency and Ms Chen was only tendered on appeal.
The parties thus did not lead evidence in the Local Court on which this issue necessarily depends.
The terms of the agreement and its consequences were not addressed, but on its face, it left open a question about whether it was Ms King, or the agency, on whom an obligation to take out workers compensation fell. The deed on which the landlords relied as having involved relevant admissions, is not in evidence. And there is no suggestion that she has been charged with, let alone convicted of, any offence under the Workers Compensation Act.
The now alleged criminal consequences of Ms King’s failure to obtain workers compensation insurance, thus cannot justly be determined on this appeal.
Any criminal offending would require a consideration not only of the requirements of that Act, but also of the Workplace Inju**ry Management and Workers Compensation Act 198**8 (NSW) and the terms of the agreement which Ms King entered with the agency which supplied the nanny’s service. They were not addressed on the appeal.
But it cannot be overlooked that the latter Act makes provision in cl 2A of Schedule 1 for labour hire service arrangements, under which contractors who perform work for another person are taken to be employees of the labour hire agency, rather than the person who is provided with the services.
The issue of Ms King’s obligation to have workers compensation insurance for Ms Chen arose on the appeal as the result of leave the landlords sought and were given to amend their pleadings, which Ms King unsuccessfully opposed: Ge v King [2025] NSWSC 1215. Harrison AsJ taking the view that the leave should be granted, what was sought to be pursued raising a question of pure law: at [62].
The unchallenged evidence of Ms King’s solicitor Mr Mitchell, on the application for leave to amend the summons, was also received on the hearing of the appeal, over objection as to relevance. His evidence included that on his reading of the defence in the Local Court, no issue as to Ms King’s obligation to have workers compensation insurance had been raised. Nor was that addressed in the case advanced in the Local Court.
With the result that this claimed obligation was not an issue which he had raised with Ms King, even though counsel had been engaged to appear for her in the Local Court.
Mr Mitchell also said that had the matters raised by the amended appeal been pursued in the Local Court, steps would have been taken to identify the relevant evidence. Ms King having to be advised about the agreement she had entered with the agency and Ms Chen, that requiring an English translation to have been obtained. And affidavit evidence would then have been given by Ms King about the nature of the relationship with Ms Chen.
Mr Mitchell considered that he may then have also been instructed to contact Ms Chen, in order to obtain evidence from her about the contractual relationship. And, if instructed, he would have investigated the basis on which Icare had acted, as well as the nature of the assistance Ms King had been given by the insurance consultants she had engaged to help her.
Mr Mitchell expected that this would have also required subpoenas to be issued and that, given the passage of time, relevant evidence may now no longer be available.
On the landlord’s case this would not be accepted. The obligation to maintain a workers compensation policy having been central to Ms King’s pleaded case and the evidence she led. The purpose of their tender of the English translation of her agreement on the appeal, being to establish that there was no possibility that it could have prevented their workers compensation point from succeeding at trial.
This cannot be accepted, given its terms. They according with a real possibility that evidence could have been led in the Local Court, which could have prevented the point they raised only on appeal, from succeeding.
I am also satisfied that the thrust of Mr Mitchelll's evidence must be accepted.
Obligations under the Workers Compensation Act and on whom they fall necessarily depend on the agreement to which it is claimed they attach. In this case, on the proper construction of the agreement Ms King entered with the agency and Ms Chen, which was not in evidence in the Local Court.
It also has to be accepted that the English translation of that agreement supports the acceptance of Mr Mitchell's evidence that, had the landlords pursued the workers compensation issue in the Local Court, an investigation of the kind he explained would have been pursued.
That would have disclosed that the agreement named three parties on whom different rights and obligations were imposed. The Chinese agency, Ms Chen and a Jia Duan, living in Gordon, who appears to be Ms King. Her evidence being that a contract had been provided by the agency in late 2021 when she was living at Gordon, with Ms Chen being hired as a nanny, before the family moved to Bellevue Hill.
It appears that both Ms Chen and Ms King were native Chinese speakers. The agreement was written in Chinese and Ms King gave evidence with the assistance of an interpreter. Her evidence according with her not having an understanding that it had been her obligation to obtain workers compensation insurance for Ms Chen.
Obligations which the Workers Compensation Act imposed to take out workers compensation insurance and the claimed consequences of their breach, which the landlords now seek to advance, thus turn on the terms of this agreement and the relationships it created. No factual findings were made about this in the Local Court, no issue then having been joined about workers compensation obligations, or the consequences of their breach.
Nor was the English translation of the agreement in evidence, when leave to amend the appeal was granted.
The landlord’s case was that it would be inferred from its terms and the damages Ms King had pursued against them, that she had accepted her liability for what Icare had paid Ms Chen. That reflecting admissions which she had made. As well as also establishing the claimed commission of an offence under s 155 of the Workers Compensation Act, on which they relied to submit that the damages she had pursued ought not lawfully have been awarded against them.
But none of this was explored with Ms King when she was cross-examined. The landlords not having challenged the damages she pursued at trial. Nor was the deed which Ms King and Icare entered in evidence in the Local Court, or on the appeal. This all reflected forensic decisions which the landlords have made.
In all of those circumstances, it must be accepted that what was sought to be advanced in relation to the Workers Compensation Act does raise mixed questions of fact and law. Relevant factual findings not having been made in the Local Court, given the limited matters over which the parties then joined issue, they are not available to be made on the appeal.
Allowing any party to raise on appeal a matter not litigated at trial has long been recognised as undermining the courts’ respective functions, as well as the policy of the law, that also depriving an appellate court of the benefit of the views of the trial court: Holcombe v Coulton (1988) 17 NSWLR 71 at 76-77. Hearings at first instance not being merely a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7; [1986] HCA 33.
It is also relevant that contrary to the case the landlords pressed, because they did not raise any issue about obligations imposed by the Workers Compensation Act or Ms King’s now alleged offence in the Local Court, the matter would have to be remitted to the Local Court for further hearing if the required leave were granted: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 284; [1990] HCA 11.
The public policy-based rule being that “unless all facts have been determined beyond controversy or the question is one of construction or law and it is expedient and in the interests of justice to entertain the point, a party may not take a point for the first time on appeal”: Banque at 284.
The operation of the Workers Compensation Act involves questions of law. But its application, breach and Ms King’s alleged offence under s 155, all turn not only on the contractual arrangement under which the nanny worked, but also on evidence about which Ms King was not cross-examined.
Had the defence pleaded reliance on the Workers Compensation Act, Ms King may have given or led other evidence. Including by tender of the agreement tendered only on the leave application in this Court. Which, it should be noted, contains terms requiring the agency to provide a replacement, if Ms King was dissatisfied with the nanny’s services; that disputes were to be resolved between the three parties by negotiation; and that if not resolved, by litigation in the Pujang Peoples Court.
It follows that a consideration of whether the relationship which came into existence between Ms King and Ms Chen, required Ms King to take out workers compensation insurance, would not necessarily result in the outcome which the landlords contended was obvious. In any event, that requires factual findings which cannot be made on this appeal.
In Gollan v Nugent (1988) 166 CLR 18 at 46; [1988] HCA 59, the limits on the principle that the Court will not assist illegal or immoral conduct was explained. It being reliance on an unlawful or immoral transaction to establish a cause of action, with which the principle is concerned and will result in a plaintiff being denied relief.
But it is not the lease which was in issue in the Local Court, which the landlords now seek to claim was unlawful. Rather, Ms King’s reliance on what she agreed to pay Icare, which on their case only on appeal, she would never have incurred or sought to recover from them, had she taken out the required workers compensation insurance.
It follows that as a matter of procedural fairness, Ms King would have to be given an opportunity to lead evidence and be heard on the workers compensation issues, before the serious findings which the landlords now seek could be made. Turning as they do on the proper construction of the agreement which was not in evidence in the Local Court, where its terms and their consequences were not relied on by the landlords, as well as on the requirements of the Workers Compensation Act and Workplace Injury Management Act.
The Court is not empowered on this appeal to make primary findings of fact. It follows that if the leave sought were granted, like in Rose v Tunstall, the Local Court’s decision would have to be set aside and the matter remitted, so that factual findings could be made: at [33]. Contrary to the case the landlords pressed, not all of the relevant facts being established by what was not in issue in the Local Court.
As Ms King submitted, the seriousness of what the landlords alleged against her attract the principle in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, which is reflected in s 140 of the Evidence Act 1995 (NSW). With the result that the required reasonable satisfaction of her alleged offending “should not be produced by inexact proofs, indefinite testimony, or indirect inference”: Briginshaw at 362. Such findings not lightly to be made by a court in civil proceedings, on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171.
Also relevant is that like in Rose, the legal costs which these parties have already incurred are undoubtedly now disproportionate to the amount in dispute, the sum in issue being “comfortably under the statutory threshold” even with interest added: at [34]. It follows that consistent with the overriding purpose specified in s 56 of the Civil Procedure Act — the just, quick and cheap resolution of the real issues in the proceedings — these parties now incurring even further costs, for a potentially uncertain return, in respect of the limited sum in dispute, is also a factor weighing against a grant of the leave the landlords require.
It must also be accepted that if there is a proper basis for the claim that Ms Chen’s failure to obtain workers compensation involved an offence under s 155 of the Workers Compensation Act, the advice she would inevitably have been given if these matters had been raised when her claims were before the Local Court, is likely to have led to her adopting a different approach. With the result that the parties would then have been likely to have resolved their differences by an appropriate compromise.
The loss of such an opportunity is also long recognised to be relevant to the question of leave: Geelong Building Society (in liq) v Encel [1996] 1 VR 594 at 608-609. In the circumstances which here have to be considered, that also supports the conclusion which I have reached, that the leave sought must be refused.
The landlords seek to depart from the course they elected to pursue at trial only after they failed in their defence. As a result, on appeal, they ask that the orders they challenge be determined on a basis which they did not advance in the Local Court, and which Ms King did not then have an opportunity to consider or meet. Justice cannot permit such an approach.
Their case also being advanced on the basis of a claimed implied term in the lease regarding workers compensation insurance, which was not pleaded and did not appear to pay necessary regard to the limited circumstances in which a term may be implied in a contract: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283; Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 at 347; [1982] HCA 24*.*
The result is that leave is required, but would have to be refused, even if sought.
The Civil Liability Act required the general principles specified in s 5B to have been considered. That requiring a consideration of whether the risk of the blind falling which had materialised was foreseeable, not insignificant and in the circumstances, one against which precautions would have been taken. Also having regard to the matters specified in s 5B.
His Honour also having failed to apply what was decided in Northern Sandblasting at 359-360, that:
That according with what had been successfully pursued in Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361, where a tortious claim had been pleaded as an alternative to the breach of statutory obligations to provide premises reasonably fit for habitation, rather than contractual breach. Hatzistergos DCJ having dealt with those claims by application of the different tests which applied to the claim brought in tort and that pursued for breach of statute.
In relation to the claimed breach of s 52 of the Residential Tenancies Act, his Honour having observed that it was “not subject to any qualification of reasonableness”. The claimed breach being found, applying Northern Sandblasting Pty Ltd at 612: Murphy at [187]. With a failure to exercise reasonable care, to which s 5B of the Civil Liability Act applied, also being found on the evidence led in relation to the claimed negligence: Murphy at [203]-[240].
Whether that had been the result of negligence was accordingly irrelevant to the claimed breaches which Ms King pursued in the Local Court. Given the claim which was actually pursued and resisted, I can see no error in his Honour’s approach.
Nor any just basis for ordering that the matter to be remitted to the Local Court, so that the landlords can pursue a defence based on Part 1A of the Civil Liability Act. Which, I am satisfied, is the order which would have to be made, if the landlord’s case was accepted. Justice having to be done between these parties and Ms King being entitled to be heard on her response to such a defence.