Cusack v Valsamis [2019] NSWCATAP 98

Cusack v Valsamis [2019] NSWCATAP 98

The appellants' grounds raised factual challenges rather than questions of law, so leave to appeal was required. The Tribunal Member's findings on the landlords' damage claims were open on the evidence, reasons were comprehensible, procedural fairness was afforded, and the appellants' additional material was reasonably available at the original hearing and was not likely to have produced a different result. The Appeal Panel was therefore not satisfied that refusal of leave would result in any substantial miscarriage of justice under clause 12(1), although the short delay was explained and caused no asserted prejudice, warranting an extension of time.

Jurisdiction
Australia
Judgment Date
23 April 2019
Procedural Posture
Internal Appeal Concerning Residential Tenancy Damage Compensation / Appeal Panel; Extension of Time and Leave to Appeal
Outcome
Time for commencement of the appeal extended; leave to appeal refused; appeal dismissed.
Legal Topics
['internal Appeal' 'leave to Appeal' 'extension of Time' 'substantial Miscarriage of Justice' 'fresh Evidence' 'rental Bond and Property Damage Compensation']
['residential Tenancy Law' 'civil and Administrative Tribunal Procedure'] ['internal Appeal' 'leave to Appeal' 'extension of Time' 'substantial Miscarriage of Justice' 'fresh Evidence' 'rental Bond and Property Damage Compensation']

Case Brief

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Procedural Posture

Internal Appeal Concerning Residential Tenancy Damage Compensation / Appeal Panel; Extension of Time and Leave to Appeal

Legal Issues

  1. 1 ['Whether the appellants required leave to appeal because the grounds raised no question of law.' 'Whether the appellants may have suffered a substantial miscarriage of justice under clause 12(1) of Part 6 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 No 2 (NSW).' 'Whether additional material relied on by the appellants constituted significant new evidence or should otherwise be admitted.' 'Whether time for commencement of the appeal should be extended.']

Ratio Decidendi

The appellants' grounds raised factual challenges rather than questions of law, so leave to appeal was required. The Tribunal Member's findings on the landlords' damage claims were open on the evidence, reasons were comprehensible, procedural fairness was afforded, and the appellants' additional material was reasonably available at the original hearing and was not likely to have produced a different result. The Appeal Panel was therefore not satisfied that refusal of leave would result in any substantial miscarriage of justice under clause 12(1), although the short delay was explained and caused no asserted prejudice, warranting an extension of time.

Court Disposition

Time for commencement of the appeal extended; leave to appeal refused; appeal dismissed.

Orders

  • ['The time for commencement of the appeal is extended to 9 January 2019.' 'Leave to appeal is refused.' 'The appeal is dismissed.']