Steward v McKay [2018] NSWCATAP 288

Steward v McKay [2018] NSWCATAP 288

The notice of appeal was filed out of time and the grounds of appeal had no merit sufficient to justify an extension. Although the appellant was denied procedural fairness to a limited extent when Mr Patrech was not permitted to represent her despite earlier leave, his full participation would not have made any difference because the appellant had not filed evidence in statement form addressing the critical tenancy arrangements and was given an opportunity to comment. The remaining grounds either did not disclose an error of law or required leave, which was refused because no issue of principle, public importance, reasonably clear injustice, or unfair fact-finding process was shown. The...

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings Concerning a Rental Bond / Application to Extend Time for Filing the Notice of Appeal and Appeal Before the NCAT Appeal Panel From a Consumer and Commercial Division Decision Dated 11 July 2018
Outcome
Application to extend the time for filing the notice of appeal refused; appeal otherwise dismissed.
Legal Topics
['internal Appeal' 'extension of Time' 'rental Bond' 'co Tenants' 'procedural Fairness' 'leave to Appeal' 'fresh or New Argument on Appeal' 'costs']
['administrative Law' 'residential Tenancy Law' 'civil Procedure'] ['internal Appeal' 'extension of Time' 'rental Bond' 'co Tenants' 'procedural Fairness' 'leave to Appeal' 'fresh or New Argument on Appeal' 'costs']

Case Brief

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings Concerning a Rental Bond / Application to Extend Time for Filing the Notice of Appeal and Appeal Before the NCAT Appeal Panel From a Consumer and Commercial Division Decision Dated 11 July 2018

Legal Issues

  1. 1 ['Whether time for filing the notice of appeal should be extended.' 'Whether refusal to allow Mr Patrech to represent the appellant at the hearing denied procedural fairness and warranted allowing the appeal.' "Whether the Tribunal erred by ignoring or declining to consider the appellant's evidence because it was non-compliant with directions." "Whether the Tribunal's calculation of the amount payable to the appellant for the rental bond was erroneous or inconsistent." 'Whether the Tribunal erred by not considering a recording said to prove the appellant was evicted.' 'Whether the appellant could raise on appeal a claim for $1,738 for rent paid in March 2018 that was not shown to have been claimed before the Tribunal.']

Ratio Decidendi

The notice of appeal was filed out of time and the grounds of appeal had no merit sufficient to justify an extension. Although the appellant was denied procedural fairness to a limited extent when Mr Patrech was not permitted to represent her despite earlier leave, his full participation would not have made any difference because the appellant had not filed evidence in statement form addressing the critical tenancy arrangements and was given an opportunity to comment. The remaining grounds either did not disclose an error of law or required leave, which was refused because no issue of principle, public importance, reasonably clear injustice, or unfair fact-finding process was shown. The...

Court Disposition

Application to extend the time for filing the notice of appeal refused; appeal otherwise dismissed.

Orders

  • ['Application to extend the time for filing the notice of appeal refused.' 'Appeal otherwise dismissed.' 'The respondent to file and serve submissions as to costs by 14 December 2018.' 'The appellant to file and serve submissions in response by 7 January 2019.']