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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: Mr J
Before: Schonell J
Before: Mr J, Priest JA, Taylor JA, Kidd JA
Before: Connock J
Before: Finanzio J
Huang (landlord) sought leave to appeal VCAT orders that largely favoured tenants after they broke a lease, arguing legal errors including failure to consider formal repair notice requirements and that VCAT ignored his claim for lost rent. The Supreme Court (Finanzio J) held that s 75 RTA (non-urgent repairs process) is not a mandatory precondition to compensation claims and that the Tribunal had in fact considered and rejected the landlord's lost rent claim, including mitigation by prompt reletting (the property was re-let at a higher rent). There was no error of law and leave to appeal was refused.
Before: Katzmann J
Before: O'Bryan J
Before: Mr J, Raper JJ
Before: Curtin AJ
Before: Kirk JA, Price AJA at [1]
The Court of Appeal did not rehear the underlying property or costs disputes. It considered whether there was a sufficient reason to allow an appeal to proceed. It concluded that the proposed grounds did not raise an important legal issue or show a sufficiently clear injustice. In particular, the proposed set-off depended on the facts and circumstances before the primary judge, and the applicant could still claim any outstanding amounts. The complaints about trustee fees were also problematic because the Trustees were not parties to the appeal. The Court therefore refused leave, dismissed the appeal as incompetent, and ordered the applicant to pay the respondents' costs.
Before: G Blake AM SC, Principal MemberD Goldstein, Senior Member
Before: Neilson DCJ
Before: R Tupman DCJ