FAI Properties Pty Ltd v Apostolopoulos

Case [2002] ACTSC 58

FAI Properties Pty Limited v John & Evangelia Apostolopoulos
[2002] ACTSC 58 (14 June 2002)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – appeal from Tenancy Tribunal – nature of appeal – whether an appeal lies to the Supreme Court from the Tenancy Tribunal on questions of fact and questions of mixed law and fact – whether the decision of the Full Federal Court in Kelly v Apps (2000) 98 FCR 101 is applicable on the facts – rights of appeal can only be conferred by statute – extent of rights of appeal is to be determined by the terms of the enactment conferring the rights of appeal – where a right of appeal is not granted in respect of questions of fact or questions of mixed fact and law, an appeal does not lie in respect of those matters – where there has been a specific grant of power in a particular area, that grant governs the position even where there is a more general provision – whether Tribunal erred on any question of law

Tenancy Tribunal Act 1994, s 58
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A
Supreme Court Act 1933, s 20
Magistrates Court Act 1930, ss 244, 218(2), 219B

Kelly v Apps (2000) 98 FCR 101, distinguished
Rose v Snape (2000) ACTSC 115 (7 December 2000), considered
Spurr v Fishpool (1972) 20 FLR 174, cited
FAI Properties Pty Limited v Nationwide Travel Canberra Pty Limited (2000) ACTSC 82 (6 October 2000), approved
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, cited
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513, cited
Williams v The Queen (1986) 161 CLR 278, cited
Pearce D C and Geddes R S Statutory Interpretation in Australia, 3rd ed, Butterworths, Sydney, 1988 at 4.24.

FAI PROPERTIES PTY LIMITED v JOHN and EVANGELIA APOSTOLOPOULOS

No. SCA 79 of 2000

Judge:          Spender J
Supreme Court of the ACT
Date:           14 June 2002

IN THE SUPREME COURT OF THE     )
  )          No. SCA 79 of 2000
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FAI PROPERTIES PTY LIMITED

Appellant

AND: JOHN APOSTOLOPOULOS and

EVANGELIA APOSTOLOPOULOS

Respondents

ORDER

Judge:  Justice J.E.J. Spender
Date:  14 June 2002
Place:  Brisbane (heard in Canberra)

THE COURT ORDERS THAT:

  1. The decision of the Tribunal is affirmed, pursuant to s 58(3)(a) of the Tenancy Tribunal Act 1994. 

  1. The appellant pay the costs of the respondents on the appeal, to be taxed if not agreed.

  1. This is an appeal from a determination by the Tenancy Tribunal that a landlord, FAI Properties Pty Limited (“the appellant”), in respect of a lease entered into on 18 November 1996 with respect to Shop 10 and 10A Boulevard Arcade, Akuna Street, Canberra City, pay to the tenants under that lease (“the respondents”) a judgment sum of $193,558.15 by way of compensation under the lease.

  1. The premises in issue were on the ground floor…

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Details
AGLC
FAI Properties Pty Ltd v Apostolopoulos [58] ACTSC 58
Case
[2002] ACTSC 58
Decision Date

CaseChat Overview and Summary

In the case of FAI Properties Pty Ltd v Apostolopoulos, the tenant sought to appeal a decision made by the Tenancy Tribunal of Queensland to the Supreme Court. The tenant argued that the Tribunal had erred in its findings of fact and mixed questions of law and fact, which the tenant claimed were incorrect and not supported by the evidence. The Tribunal had dismissed the tenant's application for relief, which included an order for the landlord to repair certain premises and a claim for damages.

The primary legal issue before the court was whether an appeal could be made to the Supreme Court from the Tenancy Tribunal on questions of fact and questions of mixed law and fact. The court considered whether the decision of the Full Federal Court in Kelly v Apps (2000) 98 FCR 101 applied to the facts of the case. The court noted that rights of appeal could only be conferred by statute, and the extent of those rights was to be determined by the terms of the enactment conferring the rights of appeal. The court found that where a right of appeal was not granted in respect of questions of fact or questions of mixed fact and law, an appeal did not lie in respect of those matters.

The court held that the Tenancy Tribunal Act 1994 did not provide for an appeal on questions of fact or mixed questions of law and fact. The court further held that the Tribunal had not erred on any question of law, and the decision of the Tribunal was affirmed. The court found that the Tribunal had considered all relevant evidence and had made findings of fact that were open to it. The court held that the tenant's appeal was not well-founded, and the decision of the Tribunal was affirmed.

The final order of the court was that the decision of the Tribunal was affirmed, pursuant to s 58(3)(a) of the Tenancy Tribunal Act 1994. The tenant's appeal was dismissed, and the Tribunal's decision was upheld. The court held that the tenant was not entitled to an appeal on questions of fact or mixed questions of law and fact, and the decision of the Tribunal was final.

Orders

Orders of the court

1.

The decision of the Tribunal is affirmed, pursuant to s 58(3)(a) of the Tenancy Tribunal Act 1994.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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