Phanivong v Garner [2014] NSWCATAP 62

Phanivong v Garner [2014] NSWCATAP 62

Leave to appeal was refused because the appellant did not establish a substantial miscarriage of justice: the Tribunal had documentary and oral evidence capable of supporting findings that water ingress caused damage for which the tenants suffered a $300 loss, and that the landlord's failure to rectify the bedroom 4 air conditioner was a breach causing withdrawal of services for which $380 compensation was not shown to be unreasonable.

Jurisdiction
Australia
Judgment Date
16 October 2014
Procedural Posture
Residential Tenancy Appeal From the Consumer and Commercial Division / Application for Extension of Time and Leave to Appeal Before the Appeal Panel
Outcome
Application for leave to appeal refused; appeal otherwise dismissed.
Legal Topics
['leave to Appeal' 'extension of Time' 'substantial Miscarriage of Justice' 'against the Weight of Evidence' 'compensation for Water Damage' 'withdrawal or Reduction of Services']
['residential Tenancy' 'administrative Law' 'civil Procedure'] ['leave to Appeal' 'extension of Time' 'substantial Miscarriage of Justice' 'against the Weight of Evidence' 'compensation for Water Damage' 'withdrawal or Reduction of Services']

Case Brief

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Procedural Posture

Residential Tenancy Appeal From the Consumer and Commercial Division / Application for Extension of Time and Leave to Appeal Before the Appeal Panel

Legal Issues

  1. 1 ['Whether time to appeal should be extended where the Notice of Appeal was filed outside the 14 day time limit for residential proceedings.' 'Whether the appellant should have leave to amend the Notice of Appeal to seek leave to appeal under section 80 and Schedule 4 cl 12 of the Civil and Administrative Tribunal Act 2013.' "Whether the appellant may have suffered a substantial miscarriage of justice because the Tribunal's findings on compensation for water-damaged electrical goods and a non-functioning air conditioner were not fair and equitable or were against the weight of the evidence."]

Ratio Decidendi

Leave to appeal was refused because the appellant did not establish a substantial miscarriage of justice: the Tribunal had documentary and oral evidence capable of supporting findings that water ingress caused damage for which the tenants suffered a $300 loss, and that the landlord's failure to rectify the bedroom 4 air conditioner was a breach causing withdrawal of services for which $380 compensation was not shown to be unreasonable.

Court Disposition

Application for leave to appeal refused; appeal otherwise dismissed.

Orders

  • ['By consent the appellant has leave to appeal out of time and time is extended pursuant to s41 of the Civil and Administrative Tribunal Act 2013 up to 1 July 2014.' 'The appellant has leave to amend the Notice of Appeal to seek leave to appeal in accordance with section 80 and Schedule 4 cl 12 of the Civil and...