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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.
1,764 case citations
Before: Kelly AJ
Before: Feutrill J
Before: Adamson JA at [1]Stern JA at [63]Price AJA at [64]
The Court fixed the appellants’ damages at $483,244, including GST, for the cost of rectifying their home by installing the cladding they had originally contracted for. It preferred detailed, project-specific cost evidence in several disputed categories. The respondents did not obtain a reduction by blaming the builder: the builder was not shown to have caused the relevant loss, and the respondents had not properly advanced that factual case in the lower court.
Before: S de Jersey, Principal MemberR Titterton OAM, Senior Member
Before: S Westgarth, Deputy President, R Alkadamani, Senior Member
Before: Stern JA at [1], Cavanagh J at [2], Yehia J at [3].
Before: McHugh JAHamill JYehia J
Before: Price AJA at [1], N Adams J at [164], Sweeney J at [165]
Before: Stern JA at [1], Cavanagh J at [3], Yehia J at [94]
Before: Habib SC DCJ
Before: Newlinds SC DCJ
Before: Washington C
Before: Gray C
Before: Targett C
Before: Espinosa C
Before: Williams J
Before: McGuire J
Before: Faulkner J
Before: Bowskill CJ, Mullins P, Bradley JA
The Court of Appeal divided over when an EFT deposit counts as paid. The majority held that this contract required the deposit holder actually to receive the balance deposit by 5.00 pm on the day the buyer notified the seller of finance approval. The EFT arrived too late, so the buyer breached an essential term and the seller's appeal succeeded. Bradley JA disagreed about what “pay” meant: he considered the buyer had paid when it completed its instruction to the bank. He agreed, however, that the contract did not contain the implied term found by the primary judge.
Before: Smith J
Before: Burns J
Before: Gillard J
Before: Watson J
Before: Finanzio J
Before: Croucher J
Before: FORBES J
Before: Keogh J
Before: Delany J