Kaci v Birch [2018] NSWCATAP 48

Kaci v Birch [2018] NSWCATAP 48

Although the Tribunal member erred by not admitting the Council documents annexed to the tenant's amended submissions, the tenant did not provide the amended submissions to the Appeal Panel and did not establish that rejection of the balance of the submissions was erroneous. The appeal was lodged 12 days late and, because the tenant had no fairly arguable case in the absence of evidence of loss or damage caused by any breach, it was not appropriate to extend time or grant leave to appeal.

Jurisdiction
Australia
Judgment Date
21 February 2018
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Application for Extension of Time to Appeal, Application for Leave to Appeal, and Appeal From Consumer and Commercial Division Decision
Outcome
Application for extension of time dismissed; application for leave to appeal dismissed; appeal dismissed.
Legal Topics
['extension of Time to Appeal' 'leave to Appeal' 'tenant Compensation Claims' 'unauthorised Residential Premises' 'council Approval and Occupation Certificate' 'quiet Enjoyment' 'evidence Before Ncat']
['residential Tenancy Law' 'administrative Law' 'civil Procedure'] ['extension of Time to Appeal' 'leave to Appeal' 'tenant Compensation Claims' 'unauthorised Residential Premises' 'council Approval and Occupation Certificate' 'quiet Enjoyment' 'evidence Before Ncat']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Application for Extension of Time to Appeal, Application for Leave to Appeal, and Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether time should be extended for the tenant to file an internal appeal lodged 12 days late.' 'Whether leave to appeal should be granted under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether the Tribunal member erred by refusing to treat the tenant's amended written submissions and annexed Council documents as evidence." 'Whether the tenant established loss or damage caused by alleged breaches of the Residential Tenancies Act 2010 (NSW), including ss 26, 49, 50, 52, 57, 109 and 187.' 'Whether compensation was available for the Council visit and alleged interference with quiet enjoyment on 16 December 2016.']

Ratio Decidendi

Although the Tribunal member erred by not admitting the Council documents annexed to the tenant's amended submissions, the tenant did not provide the amended submissions to the Appeal Panel and did not establish that rejection of the balance of the submissions was erroneous. The appeal was lodged 12 days late and, because the tenant had no fairly arguable case in the absence of evidence of loss or damage caused by any breach, it was not appropriate to extend time or grant leave to appeal.

Court Disposition

Application for extension of time dismissed; application for leave to appeal dismissed; appeal dismissed.

Orders

  • ['Application for extension of time in which to appeal is dismissed.' 'Application for leave to appeal is dismissed.' 'Appeal is dismissed.']