Touski v Mak [2014] NSWCATAP 45

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Touski v Mak [2014] NSWCATAP 45 Hearing dates: 6 August 2014 Decision date: 26 August 2014 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President S Westgarth, Deputy President Decision: 1. Time to file the application for leave to appeal is extended to 27 March 2014. 2. Leave to appeal is refused. 3. Appeal dismissed. Catchwords: APPEAL -Civil and Administrative Tribunal (NSW) - residential tenancy - out of time - merits review - whether appellant may have suffered a substantial miscarriage of justice - new evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Nanschild v Pratt [2011] NSWCA 85 Gallo v Dawson [1990] HCA 30, 93 ALR 479 Category: Principal judgment Parties: Hossein Touski (Appellant) Jensen Mak (Respondent) File Number(s): AP 14/0052 Decision under appeal Jurisdiction: 150003 Citation: Unreported Date of Decision: 2014-03-06 00:00:00 Before: P Smith, General Member File Number(s): RT 13/64939

reasons for decision

Introduction 1This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 6 March 2014 relating to a residential tenancy agreement between the appellant (the tenant) and the respondent (the landlord). The Tribunal ordered the appellant to pay a total of $6,286 to the respondent. This appeal concerns two components of that sum - $2820 which the appellant was ordered to pay as a "break lease" fee and $1800 which was compensation for external roof damage. 2The appellant did not appeal on a question of law. Instead he sought leave to appeal "on any other ground": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). In relation to appeals from the Consumer and Commercial Division leave can only be granted in the limited circumstances set out in Schedule 4, cl 12: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 3The meaning of "substantial miscarriage of justice" was summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [71] and [79]: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - ."