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NCAT Appeal Panel | 2014-04-09
Tenants were terminated for non-payment of rent following an uncontested hearing where the landlord's agent gave evidence and the Member recorded findings in hearing notes. The tenants sought leave to internally appeal under s 80(2)(b) but did not raise any question of law; therefore leave required. Clause 12 Schedule 4 requires showing the appellant 'may have suffered a substantial miscarriage of justice' because the decision was unfair, against the weight of evidence, or there is significant new evidence. The tenants relied on phone logs and asserted contact and willingness to pay. The Appeal Panel found the record disclosed arrears and necessary findings, the phone logs were not fresh or persuasive, and there was no denial of procedural fairness. Leave was refused, the appeal dismissed, and the stay of the original orders lifted.
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The Owners received $200,000 from the building certifier after settling their claim against it. They later obtained damages against the Builder for defective work. Because some of the losses overlapped, the court deciding the Builder’s damages had to consider whether the settlement had already compensated the Owners for some of that same loss. The appeal court said it did, but only to a limited extent: the Builder was not entitled to deduct the whole $200,000 because some damages were solely the Builder’s responsibility and the settlement also included costs. The Builder’s separate attempt to avoid the site-cut rectification award failed because that contractual defence was not properly raised at trial, and the contract did not support it on the evidence before the Court.
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