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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: Campbell J
Before: Mr J, Gillard J, Halley J, French CJ, Nettle JJ, Lee J, Anderson J
Before: Brereton J, Beach J, Middleton J, Brooking JA, Snaden J
Before: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
The High Court dismissed Deripaska's appeal against the refusal to invalidate the sanctions regulations in their entirety. The regulations restricted dealing with assets connected to a designated person, and the parties accepted that, without a ministerial permit, they could make it practically impossible to obtain legal representation. The Court concluded that the regulations could not operate so as to impair access to constitutionally protected judicial review. It did not, however, produce one common formulation covering every possible kind of legal advice or court proceeding. The judges differed on how far the necessary protection extended, and several broader constitutional questions were left unresolved.
Before: Gageler CJ, Gordon, Edelman, Steward, Beech-Jones JJ
The High Court held that a business relying on honest concurrent use must show honesty when each allegedly infringing use occurred, not merely when it first chose its brand or when litigation later began. Honesty depends on the decision-makers' actual state of mind, assessed against ordinary, decent people's standards. Knowing about another mark does not automatically defeat the defence, but the Zip Companies did not prove that their use was honest after they had received reports warning that their ZIP branding might conflict with Firstmac's registered ZIP mark. The appeal was dismissed with costs.
Before: Gageler CJ, Gordon, Edelman, Gleeson, Jagot JJ
Australia had chosen not to apply the Convention provisions dealing specifically with wreck-removal claims. TasPorts' relevant costs were both wreck-removal-related claims and claims that could fit a more general property-damage category. The High Court held that the reservation removed claims in the excluded category from limitation altogether in Australia. The claim did not become limitable merely because it could also be described under the general category. The appeal was dismissed with costs.
Before: Ward P; Leeming JA; Free JA
The appeal reduced Ms Balacco’s judgment but did not remove it. Because each side succeeded on some matters, the Court considered how to divide appeal costs. It declined to give special costs consequences to a late, unclear offer and found the other offer irrelevant. Rather than requiring a detailed calculation of costs for each appeal issue, it ordered the owners corporation to pay one third of Ms Balacco’s appeal costs.
Before: Ward P at [1] Kirk JA at [2] Ball JA at [3]
The Court accepted that fires caused by the relevant refrigerator fault were a foreseeable and serious risk. But that did not prove that LG Aust acted unreasonably by relying on LG SK’s spreadsheet. The appellants had to show that LG Aust had reason to suspect the spreadsheet was wrong, and that further questions would probably have caused LG SK to add their refrigerator to the recall. The Court found the evidence did not establish either point. The appeal was dismissed, although the Court disagreed with the primary judge’s stated reasons for limiting the scope of liability if liability had otherwise been proved.
Before: Bell CJ; Leeming JA
Litigation Fund tried to appeal the dismissal of a new claim for repayment of litigation funding. The Court of Appeal said the notice of appeal was not competent without leave because summary dismissal is interlocutory. It then refused leave. In the Court’s view, the new unjust-enrichment claim was closely connected to the earlier claim for the same funds, could have been raised earlier, and followed an unsuccessful attempt to add it to the earlier proceeding. The Court found no broader legal question or reasonably clear injustice, and treated the alleged factual errors as immaterial. Litigation Fund was ordered to pay the Aversas’ costs, subject to the stated exception.
Before: Ball JA
The Court ordered Gorilla Rush and Johnson to pay Fraser’s assessed costs of their unsuccessful leave application now, rather than waiting until the District Court case ends. The judge considered the appeal a separate matter, noted that its costs order could not later be undone in the primary proceedings, treated the earlier finding that the application was misguided as indicating unreasonable conduct, and took account of the likely delay before trial. Fraser did not receive the costs of the later motion because the judge considered that motion could have been avoided and a further costs order might provoke another dispute.
Before: Ball JA
The Council sought an order requiring Clifffall to secure the Council's costs of its appeal. The Court accepted that there was a basis to consider security under the Corporations Act, but declined to order it. The appeal had reasonable prospects, raised a question with public importance, and was already well advanced. The Council's appeal-cost estimate appeared excessive and was not adequately broken down. The Court also considered Mr Khouri's undertaking and the evidence about his assets. It dismissed the motion with costs.
Before: Schmidt AJ
Before: Williams J
Before: Pike J
Before: Leeming JA
Before: Chen J
Before: Brereton J
Before: McWilliam J
Before: Leeming JA at [1]; Payne JA at [2]; Mitchelmore JA at [89]
The Court of Appeal upheld the landlord’s judgment. It concluded that the lessee’s decision to store plastic-wrapped pallets outside was sufficiently connected to the fire to trigger the lease indemnity, including for damage to the neighbouring property. The lease also separately required the warehouse to be reinstated to its original form, which the Court read as including reconstruction. By contrast, the general obligation to keep and maintain the premises did not itself require reconstruction. The indemnity finding was enough to dismiss the appeal.
Before: Boulten J
Before: Muston J
Before: Sirtes J
Before: Muston J
Before: Dhanji J
Before: McWilliam J
Before: Mossop J
Before: Horan J
Hira Singh Kamoh appealed after a lower court rejected his challenge to the refusal of a student visa. The Federal Court found that he had not shown that the lower court made an error. In particular, he did not dispute that he was not enrolled in a relevant course when the Tribunal considered his case, and he provided no particulars or evidence supporting his procedural-fairness allegation. The appeal was dismissed, and he was ordered to pay the Minister’s costs of $5,000.
Before: Mitchelmore JA at [1]; Free JA at [2]
The Court of Appeal did not decide a further appeal about the parties' lease dispute. It decided only whether the applicant should be allowed to bring that appeal. The landlord argued that a lease clause about flood damage applied only to damage occurring after the renewed lease began, and that the tenant should not have received repayment of rent without establishing a basis for restitution. The Court considered the lease argument unpersuasive when the lease was read as a whole, but did not finally determine the restitution issue. It refused leave because the proposed appeal did not establish a sufficient reason for reconsideration and the likely legal costs would be far greater than the small sums in dispute. The refusal was with costs.
Before: Kelly AJ
Before: Muller J