Touski v Mak [2014] NSWCATAP 45

Touski v Mak [2014] NSWCATAP 45

The six-day delay was short and the respondent identified no particular prejudice, so time to file was extended. Leave to appeal was refused because the appellant did not show he may have suffered a substantial miscarriage of justice: financial hardship did not relieve him of the contractual break lease fee; it was open to the Tribunal to find that he vacated because of financial hardship rather than safety concerns; the evidence did not require an inference that roof damage existed at the start of the tenancy and the roof damage finding was not shown to be against the weight of evidence; and the proposed witness evidence and expert report were not significant new evidence that was not...

Jurisdiction
Australia
Judgment Date
26 August 2014
Procedural Posture
Internal Appeal From Consumer and Commercial Division Residential Tenancy Decision / Application for Extension of Time and Leave to Appeal; Appeal
Outcome
Time to file the application for leave to appeal was extended; leave to appeal was refused; appeal dismissed.
Legal Topics
['extension of Time' 'leave to Appeal' 'substantial Miscarriage of Justice' 'break Lease Fee' 'residential Premises Safety and Habitability' 'compensation for Property Damage' 'new Evidence on Appeal']
['administrative Law' 'residential Tenancy' 'civil Procedure'] ['extension of Time' 'leave to Appeal' 'substantial Miscarriage of Justice' 'break Lease Fee' 'residential Premises Safety and Habitability' 'compensation for Property Damage' 'new Evidence on Appeal']

Case Brief

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Residential Tenancy Decision / Application for Extension of Time and Leave to Appeal; Appeal

Legal Issues

  1. 1 ['Whether time to file the application for leave to appeal should be extended to 27 March 2014.' 'Whether leave to appeal on grounds other than a question of law should be granted because the appellant may have suffered a substantial miscarriage of justice.' "Whether the Tribunal's order requiring payment of a break lease fee was not fair and equitable in light of alleged financial hardship and alleged unsafe premises." "Whether the Tribunal's finding that the tenant caused external roof damage was against the weight of evidence." 'Whether proposed witness evidence and an independent expert report were significant new evidence not reasonably available at the time of the first instance hearing.']

Ratio Decidendi

The six-day delay was short and the respondent identified no particular prejudice, so time to file was extended. Leave to appeal was refused because the appellant did not show he may have suffered a substantial miscarriage of justice: financial hardship did not relieve him of the contractual break lease fee; it was open to the Tribunal to find that he vacated because of financial hardship rather than safety concerns; the evidence did not require an inference that roof damage existed at the start of the tenancy and the roof damage finding was not shown to be against the weight of evidence; and the proposed witness evidence and expert report were not significant new evidence that was not...

Court Disposition

Time to file the application for leave to appeal was extended; leave to appeal was refused; appeal dismissed.

Orders

  • ['Time to file the application for leave to appeal is extended to 27 March 2014.' 'Leave to appeal is refused.' 'Appeal dismissed.']