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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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Before: Ward P at [1], McHugh JA at [78], Griffiths AJA at [83]
The Court of Appeal did not grant All Civil permission to appeal. All Civil had received an assignment, under the Contractors Debts Act, of money the Club owed its head contractor. The Club argued that it could set off amounts it said were due under its contract with that contractor. All Civil argued that the Security of Payment Act prevented the Club from raising those matters. Ward P considered that provision inapplicable to All Civil's recovery proceeding, which was not a proceeding by the Club to set aside an adjudication judgment. She also considered that the assignment transferred the contractual payment obligation, not a judgment stripped of contractual defences. Those merits observations were conditional because leave was refused. McHugh JA agreed with the orders and explained separately that the assigned obligation remained a contractual debt even though adjudications had quantified it.
Before: K Robinson, Principal MemberP H Molony, Senior Member