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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: Brasch J
Before: Country P, Gill J
Before: Brereton J
Before: Galwey AC
Before: Nichols AC
Before: Dickson C
Before: Mossop J
Before: Taylor J
Before: Berman AJ
Before: Mossop J
Before: Bromberg JJ
Before: Jones JJ
The High Court held that the judge who decided liability did not have to step aside from deciding penalty merely because the liability judgment strongly criticised SunshineLoans and found Mr Powe's liability evidence dishonest. In a bifurcated proceeding, the penalty hearing continues on the binding findings made at liability; it is not a fresh hearing of those issues. The criticism was directed to evidence and arguments the judge had to assess, and the Court found no basis to infer that the judge would decide the remaining penalty questions unfairly. The appeal was dismissed with costs.
Before: Ward P at [1], Payne JA at [2], McHugh JA at [3]
The Court of Appeal refused the Edmonds and Murray Laws permission to appeal. The proposed appeal was late and did not meet the threshold for leave. The Court considered that the primary judge had evidence of BWG's registered mortgage and the Edmonds' failure to pay the secured sum, while the applicants had not put forward an adequately supported defence to possession. Their proposed arguments, including tenancy, bankruptcy, licensing, fraud and procedural fairness points, did not establish a reasonably clear injustice on the material described in the judgment. A separate motion was also dismissed, with costs.
Before: Ward P at [1], Payne JA at [261], Free JA at [262]
The Court of Appeal did not grant leave to challenge the primary judge's decision about a creditors' request for a meeting to consider replacing Balamara Resources' liquidators. The request was made in December 2024, but the Court did not know what had happened in the liquidation since then, and the applicants could make a new request that would be assessed in the circumstances then existing. That lack of practical utility was decisive. The Court also gave conditional views on the proposed appeal grounds. It considered that r 75-250 requires a liquidator to hold the specified opinion in good faith, but does not add a requirement that the opinion itself be objectively reasonable. It also considered that the primary judge had not been shown to err in reopening the evidence, admitting the challenged affidavit material, or finding that the Liquidators had formed the required opinion. Those merits observations were not necessary to the order refusing leave.
Before: Abadee DCJ
Before: Dicker SC DCJ
Before: Dickson C
Before: Pike J
Before: Pike J
Before: Mr J
Before: Baker J
Before: Pearce J