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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 appeal concerned whether a licensed real estate agent lost its right to commission because unlicensed and unregistered salespersons working for its sub-agents helped bring about the sales. The Court of Appeal read s 89 according to its text and statutory context. It concluded that the section tests the entitlement of the person seeking commission against that person's own licence, authority and appointment. The Agent met those conditions. The Court found no general intention in the Act to transfer the sub-agents' salespersons' non-compliance to the Agent for s 89 purposes. The appeal was dismissed with costs.
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