Matthews v Micallef & Ors [2021] NSWCATAP 191

Matthews v Micallef & Ors [2021] NSWCATAP 191

The Appeal Panel extended time because the delay was minor and caused no prejudice. Leave to appeal was refused because the tenants did not identify evidence the Member disregarded or any error showing that the damages award was not fair and equitable or against the weight of evidence. Claims concerning the pool, yard and garage had been withdrawn below and could not be considered on appeal. The proposed new material was not significant new evidence that was not reasonably available at the time of the original hearing. The Member was entitled, given limited evidence and lack of particularised heads of damage, to assess compensation for sewerage smells by doing the best possible with...

Jurisdiction
Australia
Judgment Date
28 June 2021
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel; Application for Extension of Time and Leave to Appeal From Consumer and Commercial Division Decision
Outcome
Time for filing the appeal was extended; leave to appeal was refused; the appeal was dismissed.
Legal Topics
['internal Appeal' 'leave to Appeal' 'extension of Time' 'assessment of Damages' 'residential Tenancy Repairs' 'withdrawal of Services' 'fresh Evidence' 'substantial Miscarriage of Justice']
['land Law' 'residential Tenancy' 'administrative Law'] ['internal Appeal' 'leave to Appeal' 'extension of Time' 'assessment of Damages' 'residential Tenancy Repairs' 'withdrawal of Services' 'fresh Evidence' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether time for filing the appeal should be extended.' 'Whether leave to appeal should be granted under s 80(2) of the Civil and Administrative Tribunal Act 2013 and cl 12(1) of Schedule 4.' "Whether the Tribunal's award of $650 compensation was not fair and equitable or against the weight of evidence." 'Whether the Tribunal failed to consider relevant evidence relating to the pool, yard, garage, toilet and mould.' "Whether the tenants' new medical or mould-related material should be admitted as significant new evidence."]

Ratio Decidendi

The Appeal Panel extended time because the delay was minor and caused no prejudice. Leave to appeal was refused because the tenants did not identify evidence the Member disregarded or any error showing that the damages award was not fair and equitable or against the weight of evidence. Claims concerning the pool, yard and garage had been withdrawn below and could not be considered on appeal. The proposed new material was not significant new evidence that was not reasonably available at the time of the original hearing. The Member was entitled, given limited evidence and lack of particularised heads of damage, to assess compensation for sewerage smells by doing the best possible with...

Court Disposition

Time for filing the appeal was extended; leave to appeal was refused; the appeal was dismissed.

Orders

  • ['Time for filing the appeal is extended to 17 February 2021.' 'Leave to appeal is refused.' 'The appeal is dismissed.']