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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: McHugh JA
The Court dismissed the appeal because the appellants repeatedly failed to take the procedural steps needed to prepare it, despite multiple orders and a clear warning. It considered the risk that the appellants would lose the opportunity for a hearing on the merits, but found that further delay would impose unfair costs and preparation burdens on the respondents and that there was no sufficient evidence that the appellants would make progress if given more time. The appellants also failed to appear for the dismissal motion after receiving notice. The respondents’ cross-appeal, which depended on the main appeal succeeding, was dismissed as well.
Before: Leeming JA at [1] Free JA at [163] Griffiths AJA at [164]
The appeal concerned who bore the contractual cost of asbestos encountered during redevelopment of former Defence land at Moorebank. The lease did not promise a pristine site or require removal of every trace of asbestos. The Court read the remediation clause alongside the planning and site-audit framework. Because an accredited auditor certified the site suitable for commercial/industrial use subject to an Environmental Management Plan, the Commonwealth had met the contractual standard, even though asbestos remained. The separate promise to return the premises clean and in good repair did not add a stricter contamination obligation. The Court therefore dismissed the appeal without deciding whether the Deed of Surrender separately released the claims.
Before: Mitchelmore JA
The applicants asked the Court to pause enforcement of the judgment while they considered or prepared a special leave application. They had not filed that application by the hearing. The Court found the proposed grounds did not give substantial prospects of special leave, and the evidence indicated that enforcement could not be completed before the filing deadline. The Court therefore refused even a short stay and ordered the applicants to pay the costs of the motion.
Before: Griffiths AJ
Before: Stern J
Before: Hammerschlag CJ in Eq
Before: Cavanagh J
Before: Kunc J
Before: Nixon J
Before: Schmidt AJ
Before: Mitchelmore JA
Interslice had paid $50,000 into court to protect CCA against the costs of the appeal. The appeal ended with each party bearing its own costs in that Court. Although CCA had separate first-instance costs, those were not what the $50,000 had been paid to secure. The Court of Appeal's separate first-instance costs orders did not change that. The court therefore ordered the $50,000 returned to Interslice.
Before: Bell CJ at [1]; Ward P at [2]; Kirk JA at [3]
The Court of Appeal held that the Deed did not guarantee payment of every scheduled commission figure regardless of whether Colliers received money from the client. The Policy's payment condition continued to apply. Mr Hudson succeeded on the Westfield commission because he introduced the parties who eventually entered the lease and Colliers received the agreed fee. He failed on the Circular Quay claim because the client paid a reduced amount, and on the Sumo Salad claim because he did not prove that Colliers invoiced or received payment for that transaction. His consequential-loss evidence assumed a much larger and earlier commission payment than the Court found could be established. The appeal was therefore allowed only in part, with final orders and costs left to be settled or determined later.
Before: Leeming JA at [1] Kirk JA at [66] Griffiths AJA at [67]
The Court of Appeal held that the Commission did not have to send Kewin's psychiatric-injury claim to a medical assessor simply because he and the insurer disagreed. The application process could require supporting evidence before an assessment was arranged. PIC6 required evidence demonstrating the injury status claimed, and the Commission had given Kewin an opportunity to provide more evidence. Because the application remained insufficiently supported, the delegate could decline to progress it. The Court granted permission to appeal but dismissed the appeal. It did not decide whether the existence of a medical dispute is a jurisdictional fact.
Before: Muller J
Before: N Adams CJ at CL at [1]; Hamill J at [133]; Yehia J at [140].
Before: Mossop J
Before: Ward P, Stern JA, Ball JA
The Court independently examined the evidence despite Fox’s consent to removal. It found that his repeated conduct involving child abuse material, the fact that the conduct ended only with his arrest, and the absence of evidence of rehabilitation meant that he was not fit to remain on the Roll and was likely to remain unfit for an indefinite period. The Court ordered removal and costs. It did not decide that costs must be paid by instalments, but allowed Fox to apply later for that arrangement.
Before: Payne JA Price AJA Harrison AJA
Anglicare made an offer to resolve both the appeal and cross-appeal. Mr Lau rejected it. The Court found that, by the time of the offer, the trial result had made his position clearer: he had not obtained the public apology he principally sought and had received only nominal damages. The offer would have left him substantially better off than the eventual result. The Court therefore ordered him to pay Anglicare’s costs of both proceedings on an indemnity basis from the date of the offer.
Before: Hamill J (as Duty Judge)
Before: Kunc J
Before: Brereton J
Before: Parker J
Before: Harrison AJ
Before: Harrison AJ
Before: Brereton J
Before: Hill J
Before: Neskovcin J
Before: Hamill J (as Duty Judge)
Before: Muller J
Before: Bell CJ at [1] Mitchelmore JA at [61] McHugh JA at [62]
The developer wanted the deed changed so it could pay a lower price because a planning rule affected development in a transport corridor on part of the property. The appeal relied on a different description of the parties’ alleged shared intention from the one used at trial. The Court said the primary judge could not have made the alleged error on that changed basis, and the respondents had lost the opportunity to meet that version with evidence. The Court also found that the evidence did not clearly establish a shared intention or shared mistake. The appeal was dismissed with costs.