Zioukin v Lang [2022] NSWSC 823

Zioukin v Lang [2022] NSWSC 823

The plaintiff's medical material did not justify vacating the hearing, particularly given its late, formulaic and self-reported nature, the history of similar adjournment requests, the burden on the defendant, and the absence of any identified merit or practical utility in continuing the proceedings after eviction. The amended summons did not identify any question of law with real prospects of success or any apparent miscarriage warranting leave under s 83. The procedural fairness, inadequate reasons, fraud, retaliatory notice, no evidence and jurisdictional error grounds were unsupported, factual, misconceived or no more than barely arguable. Leave to appeal was therefore refused and the...

Jurisdiction
Australia
Judgment Date
21 June 2022
Procedural Posture
Application for Leave to Appeal From the Decision of the Appeal Panel of NCAT / Hearing of Amended Summons and Informal Application to Vacate the Hearing Date
Outcome
The plaintiff's informal application to vacate the hearing date was dismissed; the amended summons seeking leave to appeal was dismissed; the plaintiff was ordered to pay the defendant's costs in this Court.
Legal Topics
['leave to Appeal From Appeal Panel of Ncat' 'appeal on Question of Law' 'procedural Fairness' 'adequacy of Reasons' 'residential Tenancy Termination Notice' 'retaliatory Notice' 'application to Vacate Hearing']
['appeals' 'civil Procedure' 'leases and Tenancies'] ['leave to Appeal From Appeal Panel of Ncat' 'appeal on Question of Law' 'procedural Fairness' 'adequacy of Reasons' 'residential Tenancy Termination Notice' 'retaliatory Notice' 'application to Vacate Hearing']

Case Brief

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Procedural Posture

Application for Leave to Appeal From the Decision of the Appeal Panel of NCAT / Hearing of Amended Summons and Informal Application to Vacate the Hearing Date

Legal Issues

  1. 1 ["Whether the plaintiff's informal application to vacate the hearing date should be granted on the basis of a late medical certificate and asserted illness." 'Whether the proposed appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) raised a question of law with sufficient prospects to warrant leave.' 'Whether the Appeal Panel erred in rejecting allegations of procedural unfairness before NCAT and before the Appeal Panel.' 'Whether the Appeal Panel erred in rejecting the contention that NCAT gave inadequate reasons.' "Whether the Appeal Panel erred in relation to the plaintiff's allegation that the termination notice was retaliatory within s 115(2) of the Residential Tenancies Act 2010 (NSW)." 'Whether any useful relief remained available after the plaintiff had been evicted from the premises.']

Ratio Decidendi

The plaintiff's medical material did not justify vacating the hearing, particularly given its late, formulaic and self-reported nature, the history of similar adjournment requests, the burden on the defendant, and the absence of any identified merit or practical utility in continuing the proceedings after eviction. The amended summons did not identify any question of law with real prospects of success or any apparent miscarriage warranting leave under s 83. The procedural fairness, inadequate reasons, fraud, retaliatory notice, no evidence and jurisdictional error grounds were unsupported, factual, misconceived or no more than barely arguable. Leave to appeal was therefore refused and the...

Court Disposition

The plaintiff's informal application to vacate the hearing date was dismissed; the amended summons seeking leave to appeal was dismissed; the plaintiff was ordered to pay the defendant's costs in this Court.

Orders

  • ["Dismiss the plaintiff's informal application for vacation of the hearing date." 'Dismiss the amended summons seeking leave to appeal from the decision of the Appeal Panel of NCAT delivered on 10 January 2022.' "Order that the plaintiff pay the defendant's costs in this Court."]