Kyriakou v Long [2014] NSWCA 308

Kyriakou v Long [2014] NSWCA 308

The proposed appeal had no realistic prospects of success because the applicant did not demonstrate arguable error in either Supreme Court decision. The primary judge was entitled to consider the Tribunal's decision-making process as a whole, including the applicant's exercised right to seek a rehearing under s 68, and the applicant had not shown a reasonably arguable defence or substantial injustice. The s 35 complaint was irrelevant or incorrect, the District Court decision was not before the primary judge, and the Division in which the Supreme Court judge sat did not affect jurisdiction. Because the proposed appeal disclosed no arguable error, there was no utility in adjourning the...

Jurisdiction
Australia
Judgment Date
04 September 2014
Procedural Posture
Application for Leave to Appeal From Supreme Court Judgments and Orders in Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) / Application for Adjournment and Application for Leave to Appeal Before the Court of Appeal
Outcome
Application for adjournment refused; application for leave to appeal dismissed; appeal dismissed as incompetent; applicant ordered to pay the respondents' costs subject to the specified dates.
Legal Topics
['procedural Fairness' 'leave to Appeal' 'adjournment' 'rehearing by Tribunal' 'incompetent Appeal' 'costs']
['administrative Law' 'civil Procedure' 'residential Tenancy' 'appeals'] ['procedural Fairness' 'leave to Appeal' 'adjournment' 'rehearing by Tribunal' 'incompetent Appeal' 'costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Supreme Court Judgments and Orders in Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) / Application for Adjournment and Application for Leave to Appeal Before the Court of Appeal

Legal Issues

  1. 1 ["Whether the hearing of the application for leave to appeal should be adjourned because of the applicant's asserted illness." "Whether the primary judge arguably erred in refusing to quash the Tribunal's decision for denial of procedural fairness." "Whether the relevant decision-making process included the applicant's opportunity to seek a rehearing under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)." 'Whether the primary judge failed to give proper consideration to s 35 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW).' 'Whether complaints about the District Court decision or the Supreme Court Division in which the matter was heard disclosed arguable error.']

Ratio Decidendi

The proposed appeal had no realistic prospects of success because the applicant did not demonstrate arguable error in either Supreme Court decision. The primary judge was entitled to consider the Tribunal's decision-making process as a whole, including the applicant's exercised right to seek a rehearing under s 68, and the applicant had not shown a reasonably arguable defence or substantial injustice. The s 35 complaint was irrelevant or incorrect, the District Court decision was not before the primary judge, and the Division in which the Supreme Court judge sat did not affect jurisdiction. Because the proposed appeal disclosed no arguable error, there was no utility in adjourning the...

Court Disposition

Application for adjournment refused; application for leave to appeal dismissed; appeal dismissed as incompetent; applicant ordered to pay the respondents' costs subject to the specified dates.

Orders

  • ['Application for an adjournment of the hearing of the application for leave to appeal refused.' 'Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed.' 'Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent.' "Order the applicant...