Clapham v Elsworth [2015] NSWCATAP 54

Clapham v Elsworth [2015] NSWCATAP 54

Although the delay and the explanation for delay did not weigh against an extension, the appellant failed to show any realistic prospect of success. The Appeal Panel was not satisfied that the alleged new oral evidence caused any denial of procedural fairness, particularly because the appellant did not provide a transcript or sound recording and the material was not shown to be significant to the Tribunal's decision. The remaining grounds largely challenged factual findings and the Tribunal's preference for the respondent's evidence. The later photographs were not significant new evidence that was not reasonably available at the original hearing. Accordingly, no question of law or...

Jurisdiction
Australia
Judgment Date
19 March 2015
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Application for Extension of Time to Appeal and Appeal Before the NSW Civil and Administrative Tribunal Appeal Panel
Outcome
Application for extension of time refused; appeal dismissed; stay order lifted.
Legal Topics
['extension of Time to Appeal' 'internal Appeal' 'prospects of Success' 'procedural Fairness' 'rent Arrears' 'residential Tenancy Compensation Claim']
['administrative Law' 'residential Tenancy Law' 'civil Procedure'] ['extension of Time to Appeal' 'internal Appeal' 'prospects of Success' 'procedural Fairness' 'rent Arrears' 'residential Tenancy Compensation Claim']

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Application for Extension of Time to Appeal and Appeal Before the NSW Civil and Administrative Tribunal Appeal Panel

Legal Issues

  1. 1 ['Whether time should be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) for the appellant to bring an internal appeal.' 'Whether the proposed appeal raised any question of law, including denial of procedural fairness arising from alleged new oral evidence and lack of opportunity to respond or cross-examine.' 'Whether leave grounds under Schedule 4, clause 12 of the Civil and Administrative Tribunal Act 2013 (NSW) were established, including whether the decision was not fair and equitable, was against the weight of the evidence, or significant new evidence had arisen.' 'Whether the proposed appeal had sufficient prospects of success to justify an extension of time.']

Ratio Decidendi

Although the delay and the explanation for delay did not weigh against an extension, the appellant failed to show any realistic prospect of success. The Appeal Panel was not satisfied that the alleged new oral evidence caused any denial of procedural fairness, particularly because the appellant did not provide a transcript or sound recording and the material was not shown to be significant to the Tribunal's decision. The remaining grounds largely challenged factual findings and the Tribunal's preference for the respondent's evidence. The later photographs were not significant new evidence that was not reasonably available at the original hearing. Accordingly, no question of law or...

Court Disposition

Application for extension of time refused; appeal dismissed; stay order lifted.

Orders

  • ['The application for an extension of time in which to appeal is refused.' 'The appeal is dismissed.' 'The stay order made on 2 December 2014 in matter RT 14/09272 is lifted.']