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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: Schonell JJ
Before: Austin J
Before: Elliott J
Before: Mr J, Perram J
Before: Special Magistrate Hassall
Before: McCallum CJ
Before: Ward P at [1], Leeming JA at [7], McHugh JA at [58]
The tenant won on the issue of termination but not on the planning issue or its claim for substantial compensation. The Court concluded that the 2006 consent covered a gym, but only as part of the registered club operation, so the gym could not rely on that consent as an independent use after the club ceased operating. Even so, the landlord had separately promised, through the exercised lease option, to provide a registrable lease. It refused to do so unless the tenant resolved the planning issue, which was not a condition of that promise. The tenant could therefore accept the landlord's repudiation and terminate. But because the tenant did not establish that it could lawfully continue the gym or that the lost opportunity had any value, it received only $10 nominal damages. The landlord's cross-claim was dismissed.
Before: Member Daly
Before: Garling J at [1], Lonergan J at [2], Ierace J at [3]
Before: Cole DCJ
Before: Pain J
Before: Smith J