Koellner v Cobb-Clark [2021] NSWCATAP 172

Koellner v Cobb-Clark [2021] NSWCATAP 172

Leave to appeal was refused because the landlord did not show that she may have suffered a substantial miscarriage of justice. The findings that there were three small chipped marks on the dishwasher panel and that the damage was fair wear and tear were supported by the evidence, including the photographs, and were findings a reasonable Tribunal member could reach. No significant new evidence was adduced or shown to have been unavailable at the original hearing, and the Tribunal applied the correct legal principles concerning fair wear and tear under s 51(3)(b) of the Residential Tenancies Act 2010 (NSW).

Jurisdiction
Australia
Judgment Date
16 June 2021
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Application for Leave to Appeal and Appeal Determined on the Papers
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['residential Tenancies Act 2010 (nsw)' 'damage to Dishwasher Integrated Panel' 'fair Wear and Tear' 'leave to Appeal' 'substantial Miscarriage of Justice' 'weight of Evidence' 'significant New Evidence']
['residential Tenancies' 'leases and Tenancies' 'civil Procedure' 'appeals'] ['residential Tenancies Act 2010 (nsw)' 'damage to Dishwasher Integrated Panel' 'fair Wear and Tear' 'leave to Appeal' 'substantial Miscarriage of Justice' 'weight of Evidence' 'significant New Evidence']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Application for Leave to Appeal and Appeal Determined on the Papers

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from a Consumer and Commercial Division decision dismissing the landlord's claim for damage to the dishwasher integrated panel." "Whether the Tribunal's finding that marks on the dishwasher panel were fair wear and tear was not fair and equitable or against the weight of evidence." 'Whether significant new evidence had arisen that was not reasonably available at the time of the proceedings below.' 'Whether the Tribunal made an error of law in applying the legal principles concerning fair wear and tear under s 51(3)(b) of the Residential Tenancies Act 2010 (NSW).']

Ratio Decidendi

Leave to appeal was refused because the landlord did not show that she may have suffered a substantial miscarriage of justice. The findings that there were three small chipped marks on the dishwasher panel and that the damage was fair wear and tear were supported by the evidence, including the photographs, and were findings a reasonable Tribunal member could reach. No significant new evidence was adduced or shown to have been unavailable at the original hearing, and the Tribunal applied the correct legal principles concerning fair wear and tear under s 51(3)(b) of the Residential Tenancies Act 2010 (NSW).

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['leave to appeal is refused;' 'the appeal is dismissed.']