Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd

Fasako Pty Ltd (the applicant) sought leave to appeal from a decision of the Common Law Division of the Supreme Court of New South Wales, which had refused leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT). The underlying dispute concerned the enforceability of a commercial lease, with the applicant alleging a breach of a landlord's obligation to maintain the building in sound structural condition, specifically relating to the adequacy of a water pump and pipes for fire protection.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal from the primary judge's refusal to grant leave to appeal from the NCAT Appeal Panel. This involved considering the appropriate constraints on a third level of appeal and whether the primary judge had erred in finding that there was no error of law that was more than merely arguable in the NCAT Appeal Panel's decision. A secondary issue, though not directly determined by the Court of Appeal due to its focus on the leave application, was the alleged inadequacy of the fire protection system and its impact on the enforceability of the lease.

The Court of Appeal adopted a constrained approach to granting leave for a third-level appeal, noting that such appeals are generally only permitted in exceptional circumstances. The Court found that the primary judge had correctly applied this constraint and had not erred in concluding that the applicant had failed to demonstrate an error of law that was more than merely arguable. The primary judge's reasoning, which the Court of Appeal endorsed, indicated that the NCAT Appeal Panel's decision did not contain a demonstrable error of law warranting further appellate review.

Consequently, the Court of Appeal dismissed the application for leave to appeal and ordered that the applicant pay the costs of the respondents in this Court.