Lees v Shore [2014] NSWCATAP 25

Lees v Shore [2014] NSWCATAP 25

The Appeal Panel dismissed the appeal because the appellant did not establish any ground for leave under cl 12(1) of Schedule 4. The Panel was not satisfied that she lacked notice of the first instance hearing, as the Tribunal file contained a Notice of Conciliation and Hearing addressed to her at the premises and the circumstances supported the inference that this was the notice she had received. The weight-of-evidence ground was misconceived because it depended on evidence the appellant assumed was not before the first instance Tribunal. The Westpac receipt was not significant new evidence because it was available well before the hearing and, in any event, did not establish that payment...

Jurisdiction
Australia
Judgment Date
02 June 2014
Procedural Posture
Internal Appeal/application for Leave to Appeal in Residential Tenancy Termination and Possession Proceedings / Appeal Panel Hearing From a Consumer and Commercial Division Decision at First Instance
Outcome
The appeal was dismissed and leave to appeal was not granted.
Legal Topics
['internal Appeal' 'leave to Appeal' 'termination of Residential Tenancy Agreement' 'possession Order' 'non Payment of Rent and Bond' 'procedural Fairness' 'fresh Evidence' 'hearing in Absence of Appellant']
['residential Tenancies' 'civil Procedure' 'administrative Law'] ['internal Appeal' 'leave to Appeal' 'termination of Residential Tenancy Agreement' 'possession Order' 'non Payment of Rent and Bond' 'procedural Fairness' 'fresh Evidence' 'hearing in Absence of Appellant']

Case Brief

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Procedural Posture

Internal Appeal/application for Leave to Appeal in Residential Tenancy Termination and Possession Proceedings / Appeal Panel Hearing From a Consumer and Commercial Division Decision at First Instance

Legal Issues

  1. 1 ['Whether the appeal should proceed in the absence of the appellant.' 'Whether the Tribunal at first instance decision was not fair and equitable because the appellant allegedly did not receive notice of the hearing.' 'Whether the Tribunal at first instance decision was against the weight of evidence.' 'Whether the Westpac Electronic Pay Anyone Receipt was significant new evidence that was not reasonably available at the time of the first instance hearing.' 'Whether leave to appeal should be granted under cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013.']

Ratio Decidendi

The Appeal Panel dismissed the appeal because the appellant did not establish any ground for leave under cl 12(1) of Schedule 4. The Panel was not satisfied that she lacked notice of the first instance hearing, as the Tribunal file contained a Notice of Conciliation and Hearing addressed to her at the premises and the circumstances supported the inference that this was the notice she had received. The weight-of-evidence ground was misconceived because it depended on evidence the appellant assumed was not before the first instance Tribunal. The Westpac receipt was not significant new evidence because it was available well before the hearing and, in any event, did not establish that payment...

Court Disposition

The appeal was dismissed and leave to appeal was not granted.

Orders

  • ['The appeal is dismissed.' 'The stay on the operation of order 3 made on 23 April 2014 is lifted.' 'Order 3 made on 23 April 2014 is varied and the appeal panel orders that possession is to be given to the respondent immediately.']