Chen v Lie [2021] NSWCATAP 34

Chen v Lie [2021] NSWCATAP 34

The Tenant identified no error of law and therefore required leave to appeal. The additional evidence filed on appeal was reasonably available at the time of the Tribunal hearing and was not taken into account. On the material before the Tribunal, which included the tenancy agreement, rental ledger, condition reports, photographs and an invoice, the Tribunal applied the correct law and made findings that were not clearly mistaken or unfair. The Tenant had not shown that she may have suffered a substantial miscarriage of justice, and leave would in any event have been refused in the exercise of discretion. The Landlord did not establish special circumstances warranting costs.

Jurisdiction
Australia
Judgment Date
17 February 2021
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Application for Leave to Appeal From the Consumer and Commercial Division
Outcome
Leave to appeal refused; appeal dismissed; no costs awarded.
Legal Topics
['residential Tenancy Bond and Cleaning Claims' 'leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'fresh Evidence on Appeal' 'special Circumstances for Costs']
['residential Tenancies' 'leases and Tenancies' 'tribunal Appeals' 'costs'] ['residential Tenancy Bond and Cleaning Claims' 'leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'fresh Evidence on Appeal' 'special Circumstances for Costs']

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Application for Leave to Appeal From the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Tenant raised a question of law permitting an appeal as of right under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether leave to appeal should be granted on the basis that the Tribunal decision was not fair and equitable, was against the weight of evidence, or involved significant new evidence.' 'Whether the Tenant could rely on evidence on appeal that was not before the Tribunal but was reasonably available at the time of the original hearing.' 'Whether special circumstances existed to warrant an award of costs to the Landlord.']

Ratio Decidendi

The Tenant identified no error of law and therefore required leave to appeal. The additional evidence filed on appeal was reasonably available at the time of the Tribunal hearing and was not taken into account. On the material before the Tribunal, which included the tenancy agreement, rental ledger, condition reports, photographs and an invoice, the Tribunal applied the correct law and made findings that were not clearly mistaken or unfair. The Tenant had not shown that she may have suffered a substantial miscarriage of justice, and leave would in any event have been refused in the exercise of discretion. The Landlord did not establish special circumstances warranting costs.

Court Disposition

Leave to appeal refused; appeal dismissed; no costs awarded.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']