Walsh v Gibson [2017] NSWCATAP 207

Walsh v Gibson [2017] NSWCATAP 207

The Appeal Panel granted leave to appeal out of time but refused leave to extend the appeal to non-question-of-law grounds because the Tribunal's findings and orders were open on the evidence and no substantial miscarriage of justice was shown. There was evidence that the septic system had malfunctioned from about September 2016, that the attempted March 2017 repair had not fully resolved the problem, and that there was no evidence establishing Ms Walsh's allegation that Ms Gibson caused the problem. The order reducing rent to $240 per week from 1 November 2016 was appropriate under s 44 of the Residential Tenancies Act 2010 because the malfunctioning septic system reduced amenity. The...

Jurisdiction
Australia
Judgment Date
31 October 2017
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Hearing; Leave to Appeal Out of Time Granted, Leave to Extend Appeal to Other Grounds Refused, Appeal Dismissed
Outcome
Leave to appeal out of time granted; leave to extend appeal to other grounds refused; appeal dismissed.
Legal Topics
['malfunctioning Septic System' 'reduction of Amenity' 'rent Reduction' 'repairs' 'leave to Appeal Out of Time' 'substantial Miscarriage of Justice' 'hot Water System Compensation']
['residential Tenancy' 'administrative Law' 'civil Procedure'] ['malfunctioning Septic System' 'reduction of Amenity' 'rent Reduction' 'repairs' 'leave to Appeal Out of Time' 'substantial Miscarriage of Justice' 'hot Water System Compensation']

Case Brief

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Hearing; Leave to Appeal Out of Time Granted, Leave to Extend Appeal to Other Grounds Refused, Appeal Dismissed

Legal Issues

  1. 1 ['Whether leave to appeal out of time should be granted for the residential tenancy appeal.' 'Whether leave should be granted to appeal on grounds other than a question of law under the Civil and Administrative Tribunal Act 2013, Sch 5, cl 12.' "Whether the Tribunal's findings about the defective septic system and orders for assessment, repair and pump out were open on the evidence." 'Whether the rent reduction to $240 per week from 1 November 2016 was supported by the evidence and authorised by the Residential Tenancies Act 2010.' 'Whether the further $100 compensation or rent credit for failure of the hot water system was open to the Tribunal.']

Ratio Decidendi

The Appeal Panel granted leave to appeal out of time but refused leave to extend the appeal to non-question-of-law grounds because the Tribunal's findings and orders were open on the evidence and no substantial miscarriage of justice was shown. There was evidence that the septic system had malfunctioned from about September 2016, that the attempted March 2017 repair had not fully resolved the problem, and that there was no evidence establishing Ms Walsh's allegation that Ms Gibson caused the problem. The order reducing rent to $240 per week from 1 November 2016 was appropriate under s 44 of the Residential Tenancies Act 2010 because the malfunctioning septic system reduced amenity. The...

Court Disposition

Leave to appeal out of time granted; leave to extend appeal to other grounds refused; appeal dismissed.

Orders

  • ['Leave to appeal out of time granted.' 'Leave to extend appeal to other grounds refused.' 'Appeal dismissed.']