Australia, July 18 -- New South Wales Land and Environment Court issued text of the following judgement on June 17:

1. This is an internal appeal from a decision of the Consumer and Commercial Division of the Tribunal determined on 31 January 2025 in which the Respondent on the appeal, Carla Zampatti Pty Ltd, was successful in obtaining a money order against the Appellant, Anna Hood. The money order was obtained by the Respondent arising from the Appellant's breaches of her retail shop lease and the costs attendant on making good the premises.

2. The appeal is brought on a single point that the amount the Appellant has been ordered to pay is incorrect because of a double-counting error involving the sum of $9,269.53.

3. For the reasons that follow, we are satisfied that leave to appeal should be granted and the appeal allowed.

The law

4. The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(2)(b) provides that an appeal made by made as of right on any question of law or with leave on any other grounds. Since this is an internal appeal from the Consumer and Commercial Division of this Tribunal the NCAT Act, Sch 4, cl 12 also applies. That clause provides:

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).

5. We are satisfied that that the decision at first instance causes the Appellant a substantial miscarriage of justice because it was against the weight of evidence in the manner in which those concepts are discussed in Collins v Urban [2014] NSWCATAP 17 at [75], referring to Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42; and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

6. In considering whether the discretion available under the NCAT Act s 80(2)(b) should be exercised, we are further satisfied that:

1) It is appropriate to grant leave since this matter appears to involve a factual error that was unreasonably arrived at and where the Tribunal at first instance was clearly mistaken: Collins v Urban at [84]; and

2) While the sum may not seem significant in the scheme of litigation in this State, an amount of $9,269.53 is a substantial sum for an individual to bear.

The decision at first instance

7. The Appeal Panel was not provided by the parties with a copy of the recording of the hearing, nor was a transcript available. The Tribunal Member did, however, provide some short reasons for the decision that accompanied the orders made. Those reasons, in which the Respondent is referred to as the "applicant" and the Appellant is generally referred to as the "lessee", are, save for the issue on appeal, sufficient bearing in mind the nature of the dispute and the guiding principle of this Tribunal as expressed in the NCAT Act, s 36(1).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197677d37c0d258e9bea65f7)

Disclaimer: Curated by HT Syndication.