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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
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The Court of Appeal agreed that the adjudicator used the wrong legal test when he refused to consider some supporting documents because they were not included with the original payment claim. But the majority concluded that this was not enough to show jurisdictional error: deciding whether material was within the scope of a claim was a task the adjudicator was authorised to perform, even if done incorrectly. The appeal was therefore dismissed. Adamson JA disagreed, reasoning that the adjudicator had wrongly narrowed what s 22 required him to consider and that the affected claims should be reconsidered. This is general legal information, not legal advice; Zoe can make mistakes, and a qualified Australian lawyer should check it before anyone acts on it or relies on it.
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