Simjanovska v Dogan [2023] NSWCATAP 69

Simjanovska v Dogan [2023] NSWCATAP 69

Leave to extend time was refused because the delay in filing the appeal was significant, the appellant's explanations for delay were inadequate, and the proposed appeal grounds were unmeritorious. The Appeal Panel found no arguable error of law or basis for leave: the Tribunal had power to determine the matter on the papers after giving the parties an opportunity to make submissions, there was no denial of procedural fairness in the procedural rulings, the findings as to the valid tenancy, notice, service, landlord identity, agent authority, non-retaliatory notice and occupation fee were open on the evidence, and no substantial miscarriage of justice was shown.

Jurisdiction
Australia
Judgment Date
08 March 2023
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings Concerning Termination of a Residential Tenancy and Occupation Fee / Application for Leave to Extend Time to File the Appeal and Appeal From Decisions of the Consumer and Commercial Division
Outcome
Leave to extend time to file the appeal refused; appeal dismissed; previous stay orders lifted immediately.
Legal Topics
['no Grounds Termination Notice Under S 85 Residential Tenancies Act 2010 (nsw)' 'extension of Time to Commence or File Proceedings' 'procedural Fairness' 'determination on the Papers' 'adjournment Applications' 'apprehended and Actual Bias' 'summonses to Produce Documents' 'occupation Fee After Termination']
['residential Tenancy Law' 'civil Procedure' 'administrative Law'] ['no Grounds Termination Notice Under S 85 Residential Tenancies Act 2010 (nsw)' 'extension of Time to Commence or File Proceedings' 'procedural Fairness' 'determination on the Papers' 'adjournment Applications' 'apprehended and Actual Bias' 'summonses to Produce Documents' 'occupation Fee After Termination']

Case Brief

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings Concerning Termination of a Residential Tenancy and Occupation Fee / Application for Leave to Extend Time to File the Appeal and Appeal From Decisions of the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether leave should be granted to extend time to file the internal appeal.' 'Whether the Tribunal denied procedural fairness by concluding the termination application on the papers without a further oral hearing.' 'Whether the Tribunal erred in refusing adjournments, further time to file material, recusal applications, in-person hearing requests, and leave to issue summonses.' 'Whether there was arguable error in findings that the tenancy agreement, notice to terminate, service, landlord identity and agent authority were valid.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice under Cl. 12 of Sch. 4 of the NCAT Act.']

Ratio Decidendi

Leave to extend time was refused because the delay in filing the appeal was significant, the appellant's explanations for delay were inadequate, and the proposed appeal grounds were unmeritorious. The Appeal Panel found no arguable error of law or basis for leave: the Tribunal had power to determine the matter on the papers after giving the parties an opportunity to make submissions, there was no denial of procedural fairness in the procedural rulings, the findings as to the valid tenancy, notice, service, landlord identity, agent authority, non-retaliatory notice and occupation fee were open on the evidence, and no substantial miscarriage of justice was shown.

Court Disposition

Leave to extend time to file the appeal refused; appeal dismissed; previous stay orders lifted immediately.

Orders

  • ['Leave to extend time to file the appeal is refused.' 'Appeal dismissed.' 'Previous stay orders of the Appeal Panel are lifted immediately.']