Docherty & Anor v Ballouk [2016] NSWCATAP 126

Docherty & Anor v Ballouk [2016] NSWCATAP 126

Leave to appeal was refused and the appeal dismissed because the Notice of Appeal did not raise a question of law, there was no evidence that the tenants were vulnerable persons or acting under a relevant disability, no evidence of pressure, undue influence or other basis to set aside the settlement agreement underlying the consent orders, and no evidence of a significant miscarriage of justice. The new ground advanced at the hearing was not permitted because it was not in the Notice of Appeal, would prejudice the respondent, and was unsupported by evidence.

Jurisdiction
Australia
Judgment Date
16 June 2016
Procedural Posture
Internal Appeal From a Decision of the Consumer and Commercial Division of NCAT Concerning Consent Orders Terminating a Residential Tenancy Agreement and Giving Possession to the Landlord / Application for Leave to Appeal and Appeal Before the Appeal Panel
Outcome
Leave to appeal refused; appeal dismissed; stay discharged.
Legal Topics
['consent Orders' 'leave to Appeal' 'setting Aside Settlement Agreement' 'procedural Fairness' 'duress' 'vulnerable Persons' 'stay of Possession Order']
['residential Tenancy Law' 'civil Procedure' 'administrative Law'] ['consent Orders' 'leave to Appeal' 'setting Aside Settlement Agreement' 'procedural Fairness' 'duress' 'vulnerable Persons' 'stay of Possession Order']

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Procedural Posture

Internal Appeal From a Decision of the Consumer and Commercial Division of NCAT Concerning Consent Orders Terminating a Residential Tenancy Agreement and Giving Possession to the Landlord / Application for Leave to Appeal and Appeal Before the Appeal Panel

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from consent orders terminating the residential tenancy and requiring vacant possession.' 'Whether the consent orders should be set aside or varied on the basis that the tenants were under stress or duress, lacked advice, or did not understand the effect of the orders.' 'Whether any question of law arose, including procedural fairness, procedural defect, failure to consider vulnerable persons, or absence of jurisdictional fact for consent orders.' "Whether there was evidence supporting the tenants' grounds for setting aside or varying the consent orders."]

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the Notice of Appeal did not raise a question of law, there was no evidence that the tenants were vulnerable persons or acting under a relevant disability, no evidence of pressure, undue influence or other basis to set aside the settlement agreement underlying the consent orders, and no evidence of a significant miscarriage of justice. The new ground advanced at the hearing was not permitted because it was not in the Notice of Appeal, would prejudice the respondent, and was unsupported by evidence.

Court Disposition

Leave to appeal refused; appeal dismissed; stay discharged.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'The stay ordered on 5 April 2016 and continued on 12 April is discharged.']