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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: Harrison AsJ
Before: Sweeney J
Before: Emmett J
Before: Nixon J
Before: Harrison AsJ
Before: McCallum CJ, Mossop and McWilliam JJ
Before: Bell CJ at [1]; Stern JA at [2]; McHugh JA at [102]
The Court of Appeal held that the will gave John an equal share of the residue, but that share was subject to the later direction requiring the value of the Blandford property to be counted against his gift. The deceased could give that direction even though she no longer owned the land, because the clause addressed how her estate was to be distributed. The court did not need to decide whether John had paid for the transfer. It also upheld the primary judge’s treatment of the transfer document and her decision not to consider John’s late, inconsistent submission about payment. The appeal was dismissed and John was ordered to pay the respondents’ costs.
Before: Rees J
Before: Elkaim AJ
Before: Cavanagh J
Before: Baker J
Before: Ward P at [1] Free JA at [2] Griffiths AJA at [81]
The Court held that a builder’s payment claim can trigger the SOP Act’s payment consequences when the recipient does not serve a payment schedule, even if the builder has not first proved the claimed work was done. The parties’ contract permitted claims from the 21st day of each month once the owner’s quantity-surveyor option was used, so the two claims were not premature. The disability accommodation, with shared facilities and bedrooms that were not independently equipped as residences, was not shown to comprise “self-contained units”. The proposed expert-evidence issue was speculative. The appeal was dismissed after leave was granted.
Before: Schmidt AJ
Before: Lonergan J
Before: Lonergan J
Before: Brereton J
Before: Muston J
Before: Emmett J
Before: Brereton J
Before: Baker J
Before: Mossop J
Before: Boulten J
Before: Elkaim AJ
Before: Emmett J
Before: Emmett J
Before: Mossop, McWilliam and Taylor JJ
The appeal had mixed results. The Builder succeeded on the question of credit for the settlement with the Certifier, but the Owners succeeded on the main excavation issue. The Court also considered the costs of an issue the Builder abandoned. Because it was not practical to separate the costs of the different issues, the Court ordered each side to pay its own appeal costs. It did not fix the earlier trial costs or calculate the settlement credit in this appeal, leaving those matters to a possible first-instance application, assessment, or agreement.
Before: Mitchelmore JA, Ball JA
The Court of Appeal did not decide a full appeal about whether the search was lawful. It decided whether Fuller should be allowed to appeal. It refused leave because the proposed arguments did not overcome several accepted, unchallenged circumstances said to support the officer’s suspicion; the primary judge had also found that Fuller entered Unit 1107. The Court considered the proposed grounds weak and further litigation disproportionate to the $2,000 damages assessment. It dismissed the summons with costs.
Before: Payne JA; Kirk JA
The applicant's defamation claim was dismissed because the Court found it was brought outside the applicable limitation period. Before he started the case, the respondents had explained their limitation argument and warned that they would seek indemnity costs. The District Court ordered indemnity costs, and the Court of Appeal found no arguable error in that discretionary decision. It extended time for the leave application but refused leave to appeal, so the costs order remained undisturbed.
Before: McWilliam J