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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: Hamill J at [1] Rigg J at [2] Coleman J at [3]
Before: Sirtes J
Before: Elkaim AJ
Before: Nixon J
Before: McHugh JA at [1] Free JA at [73] Price AJA at [74]
The Court of Appeal agreed that the trial judge should have dealt with the repair-cost and interest claims. But that did not mean the applicant would have succeeded on either claim or that an appeal was justified. The repair invoices had serious problems connecting the claimed work to damage caused after the negligence began, and in showing the reasonable cost of repairing that damage. The interest claim had not been abandoned, but it was not properly quantified for the appeal. The amounts were modest, and the applicant gave no explanation for not asking the trial judge to correct or complete the judgment under UCPR r 36.16. The Court therefore refused leave to appeal and ordered costs.
Before: Bennett J
Before: Williams J
Before: Cavanagh J
Before: Kirk JA at [1] Lonergan J at [163] Weinstein J at [164]
Before: Muston J
Before: Price AJA at [1]; Cavanagh J at [103]; Rigg J at [106]
Before: Sirtes J
Before: Scruby J
Before: Black J
Before: Black J
Before: Harrison AJ
Before: Griffiths AJ
Before: Richmond J
Before: Griffiths AJ
Before: Mitchelmore JA
The applicants wanted to stop Perpetual selling three properties while they sought permission to appeal a decision that left default judgments in place. The judge thought one part of their proposed appeal might be arguable, but it was not a strong argument at this preliminary stage. The debt was already greater than the properties’ combined valuations, interest was accumulating, the evidence showed recent local property-value declines, and Perpetual had offers for two properties. The applicants’ promise to compensate Perpetual if the injunction caused loss had little practical value because the properties were their only substantial assets. Weighing those matters together, the judge refused the injunction and ordered the applicants to pay the costs of the motion.
Before: Taylor J
Before: Williams J
Before: Pike J
Before: Muller J
Before: Ward P at [1] Kirk JA at [2] McHugh JA at [3]
The Court of Appeal upheld the finding that it was reasonably foreseeable that Soulos might recognise her former client in the documentary and understand the panel’s comments as blaming her for his death. The appeal was conducted on the basis that if those two possibilities were foreseeable, psychiatric injury was foreseeable in this case. The Court found no error in the primary judge’s conclusion and dismissed the appeal with costs.
Before: Leeming JA at [1] Kirk JA at [2] Preston CJ of LEC at [41]
The Court largely agreed with the primary judge about what the three earlier consents allowed. The 1994 consent covered a dwelling and a shed for earthmoving equipment, not an earthmoving operation across the whole property. The 1997 consent confined the sand and soil yard to the plan and facilities approved for it. Although the Court admitted extra plans relating to the 2000 application, it found that the application was for a retail plant nursery, not an earthmoving business. The appeal succeeded on a different point: three injunctions were too broad and unclear because they prohibited breach of the consents without specifying the conduct to be restrained. Those orders were set aside for rephrasing, and the costs below were sent back for reconsideration. The appellants remained responsible for 80% of the Council's appeal costs.
Before: Black J
Before: Ward P at [1] Leeming JA at [2] McHugh JA at [30]
The Court of Appeal left in place the finding that Hunter Water was liable in nuisance for flooding caused by a ruptured water main. Hunter Water did not prove that a latent manufacturing defect explained the rupture or that its repair methods reasonably minimised the risk to nearby homes. The Court also held that s 43A did not apply because the liability was based on Hunter Water’s conduct, not on exercising a special statutory power. Both the appeal and cross-appeal were dismissed.
Before: Elkaim AJ
Before: Sirtes J