Aboss v Hafeez [2022] NSWCATAP 345

Aboss v Hafeez [2022] NSWCATAP 345

Leave to appeal refused and appeal dismissed because the applicant did not demonstrate any question of law or appellable error in the Tribunal's decision. The absence of an occupation certificate prior to 12 March 2021 constituted a breach of s 49 Residential Tenancies Act but was remedied and did not void the tenancy or prove the premises were uninhabitable under s 52. Assertions of misleading and deceptive conduct under the ACL (NSW) could not be raised for the first time on appeal and, even if considered, there was no demonstrated loss. Claims for compensation failed for want of evidence of breach, damage and loss. No miscarriage of justice was established and new evidence was not...

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Internal Appeal From Consumer and Commercial Division Decision (residential Tenancies) / Application for Leave to Appeal and Substantive Appeal
Outcome
Leave to appeal refused. Appeal dismissed.
Legal Topics
['fit for Habitation' 'occupation Certificate' 'misleading and Deceptive Conduct' 'breach of Statutory Duty' 'right of Appeal' 'tribunal Procedure' 'compensation for Damage to Property']
['residential Tenancies' 'administrative Law'] ['fit for Habitation' 'occupation Certificate' 'misleading and Deceptive Conduct' 'breach of Statutory Duty' 'right of Appeal' 'tribunal Procedure' 'compensation for Damage to Property']

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Decision (residential Tenancies) / Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted and appeal allowed from a NCAT Consumer and Commercial Division decision regarding rent, habitability and alleged statutory breaches.' 'Whether the absence of an occupation certificate rendered premises uninhabitable under s 52 Residential Tenancies Act or tenancy agreement void.' 'Whether misleading and deceptive conduct/consumer protection claims arise based on non-disclosure of occupation certificate and related facts.' 'Whether water leaks and property damage claims gave rise to compensation due to breach, damage or loss.']

Ratio Decidendi

Leave to appeal refused and appeal dismissed because the applicant did not demonstrate any question of law or appellable error in the Tribunal's decision. The absence of an occupation certificate prior to 12 March 2021 constituted a breach of s 49 Residential Tenancies Act but was remedied and did not void the tenancy or prove the premises were uninhabitable under s 52. Assertions of misleading and deceptive conduct under the ACL (NSW) could not be raised for the first time on appeal and, even if considered, there was no demonstrated loss. Claims for compensation failed for want of evidence of breach, damage and loss. No miscarriage of justice was established and new evidence was not...

Court Disposition

Leave to appeal refused. Appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'The respondent may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, in support of an application for costs in respect of the appeal.' 'If the respondent files submissions in accordance with order (3),...