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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: Commission J, Dowling J
Before: McCallum CJ, Mossop and Loukas‑Karlsson JJ
The Court of Appeal corrected the damages calculation because the trial judge had reduced past as well as future damages for vicissitudes. Past loss could not be discounted in that way. The Court upheld the 25 per cent reduction to the future economic loss component, even though it was described as a buffer, because the buffer was assessed using numerical considerations and the evidence supported an increased allowance for the risk that the appellant's spinal condition would become symptomatic. The Court also upheld the findings against Xmplar. On the evidence, Xmplar coordinated the formwork work, directed where the appellant worked, and had a relevant role and capacity in addressing site conditions. The cross-appeal did not establish error on duty, breach or contributory negligence. The damages judgment was increased from $243,900 to $300,200.
Before: Burns AJ
Before: Seiden SC DCJ, Deputy PresidentH J Dixon SC, Senior Member