Kolodzeij v Ali & Anor (Appeal) - [2021] ACAT 114

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOLODZEIJ v ALI & ANOR (Appeal) [2021] ACAT 114
AA 41/2020 (RT 547/2020)
Catchwords: APPEAL – residential tenancies – determination of whether appeal proceed as a review of the original decision or as a new application – consideration of relevant principles regarding appropriate manner of conducting appeal – application for leave to adduce further evidence – relevant principles – application on appeal to proceed as a review – application to lead further evidence dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 79, 82

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219
CDJ v VAJ (No 1) [1998] HCA 67
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Mansour v Dangar [2017] ACAT 49
Roberts v Morgan & Anor [2017] ACAT 70
Thornthwaite and Commissioner for Social Housing in the ACT [2012] ACAT 11

Appeal Tribunal: Presidential Member G McCarthy

Date of Orders:  23 November 2021
Date of Reasons for Decision:      23 November 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2020
BETWEEN:
ILKA KOLODZEIJ
Appellant

AND:
SHERIF ALI ABDELAZIZ ALI
First Respondent

THE OWNERS – UNITS PLAN 3889
Second Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy

DATE:23 November 2021

ORDER

The Tribunal orders that:

The appellant on appeal has leave to proceed on the amended application for appeal dated 23 November 2020 but filed on 9 December 2020.
The appellant has leave to treat an unsigned and undated document entitled “Re AA 41/2020 Additional information” as a statement of additional grounds of appeal.
The appeal will be dealt with as a review of the original decision.
The appellant’s application for leave to adduce further evidence is dismissed.
The matter is listed for further directions by telephone on 30 November 2021 at 9:00am.
………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

On 2 May 2017, the first respondent entered into a residential tenancy agreement with the appellant for lease of unit premises in Belconnen, ACT. The agreement was for 12 months but continued as a periodic tenancy.
On 6 August 2020, the first respondent brought proceedings against the appellant alleging that the appellant had failed to maintain the premises in a reasonable state of repair, in breach of clause 55 of the standard residential tenancy terms that formed part of the tenancy agreement. The respondent made four claims for compensation arising from an intercom to the premises that was not working; entry of rainwater through an unsealed window; inconvenience caused by an overpayment of rent; and a “ticking noise” that was inconvenient and annoying.
On 26 October 2020, the original tribunal allowed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACAT 114
Decision Date: 23 November 2021

CaseChat Overview and Summary

Kolodzeij v Ali & Anor (Appeal) involved the appellant, Kolodzeij, contesting a decision made by the Tribunal. The dispute centred on the refusal of the Tribunal to grant the appellant leave to proceed with an appeal and to adduce further evidence. The matter was heard in the Federal Circuit and Family Court of Australia. The appellant sought leave to amend their application for appeal, to treat an unsigned document as a statement of additional grounds of appeal, and to present further evidence.

The court was required to determine whether the appellant's application for leave to amend the application for appeal and to treat the unsigned document as a statement of additional grounds of appeal should be granted. Additionally, the court needed to decide whether the appellant should be permitted to adduce further evidence.

The court held that the appellant had leave to proceed on the amended application for appeal and to treat the unsigned document as a statement of additional grounds of appeal. However, the court dismissed the appellant’s application to adduce further evidence. The appeal was to be dealt with as a review of the original decision, and the matter was listed for further directions by telephone. The court reasoned that the appellant had not demonstrated that the evidence was necessary or that it would change the outcome of the appeal.

Orders

Orders of the court

The Tribunal orders that:

The appellant on appeal has leave to proceed on the amended application for appeal dated 23 November 2020 but filed on 9 December 2020.

The appellant has leave to treat an unsigned and undated document entitled “Re AA 41/2020 Additional information” as a statement of additional grounds of appeal.

The appeal will be dealt with as a review of the original decision.

The appellant’s application for leave to adduce further evidence is dismissed.

The matter is listed for further directions by telephone on 30 November 2021 at 9:00am.

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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