Herbert v NSW Land and Housing Corporation

Herbert (the applicant) sought leave to appeal to the Court of Appeal of New South Wales against a decision of the Appeal Panel of the Civil and Administrative Tribunal (NCAT). The dispute concerned a warrant for possession issued by NCAT. The applicant contended that the Appeal Panel erred in law by dismissing his appeal from an earlier NCAT decision.

The primary legal issue before the Court of Appeal was whether the applicant had demonstrated an arguable error of law by the Appeal Panel, as required by section 83(1) of the *Civil and Administrative Tribunal Act 2013* (NSW) for leave to appeal. This involved assessing whether the grounds of appeal raised by the applicant had sufficient merit to warrant further appellate consideration.

Macfarlan and Meagher JJA found that the proposed grounds of appeal lacked merit. While they identified potential arguable errors made by the original NCAT decision-maker, these errors were not relied upon by the applicant in his proposed grounds of appeal, nor had they been raised before NCAT. Crucially, the Court determined that these unraised errors were unlikely to have been material to the outcome of the proceedings. Consequently, leave to appeal was refused.

The Court ordered that the summons seeking leave to appeal be dismissed, that the applicant pay the first respondent’s costs of the summons, and that the order staying the execution of the warrant for possession be dissolved.