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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.
1,627 case citations
Before: Elkaim AJ
Before: Griffiths AJ
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Before: Espinosa C
Before: Dickson C
Before: Porter C
Before: Dickson C
Before: Dixon SC
Before: Dickson C
Before: Cole DCJ
Before: S Westgarth, Deputy PresidentR Titterton OAM, Senior Member
Before: G Sarginson, Deputy President
Before: Ward P at [1]Mitchelmore JA at [2]Adamson JA at [3]
The Court of Appeal upheld the findings that Alex and Nick were involved in excavation that crossed onto the plaintiffs’ land and contributed to the collapse of their driveway. It confirmed that a person can commit trespass by intentionally excavating across a boundary even if they do not know exactly where that boundary lies. It also held that a party seeking to reduce its share of liability through proportionate liability must identify the proposed concurrent wrongdoers in its pleading. Because the trespass established against Alex and Nick was intentional, they could not rely on proportionate liability to reduce Mr Brown’s trespass judgment. The Court left the existing 70% and 30% allocation reflected in the specified orders, while changing which defendants were liable for Mr Brown’s full judgment. It also upheld rectification-cost damages in light of the property’s use as the plaintiffs’ home and the evidence at trial.
Before: Griffiths AJ
Before: Black J
Before: Piekusis J