Krown Living Pty Ltd v Lando - [2016] ACAT 149

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KROWN LIVING PTY LTD v LANDO (Appeal) [2016] ACAT 149

AA 42/2016 (XD 1006/2015)
Catchwords: APPEAL – APPLICATION FOR LEAVE TO APPEAL OUT OF TIME – principles –delay –prejudice to other party identified – importance of finality – importance of respect for time limits – no material produced to support original application – no arguable questions of fact or law identified – no arguable grounds of appeal identified – no miscarriage of justice – application refused

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 44, 56, 79, 81

Subordinate

Legislation:ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 14, 22

Cases cited: Allesch v Maunz [2000] HCA 40

Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275
Gordon Lando v Krown Living Pty Ltd & Ors [2016] ACAT 60
Hales v Commissioner for Social Housing [2014] ACAT 46
Hussain v Fahrmand [2016] ACTSC 122
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Wang v Lin & Jiang [2016] ACAT 84

Tribunal: President L Crebbin

Date of Orders: 19 December 2016

Date of Reasons for Decision: 19 December 2016

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 42/2016
(XD 1006/2016)

BETWEEN:
KROWN LIVING PTY LTD
Applicant
AND:
GORDON LANDO
Respondent

TRIBUNAL: President L Crebbin

DATE: 19 December 2016

ORDER

The Tribunal orders that:

The application for leave to appeal out of time is dismissed.

………………………………..

President L Crebbin

REASONS FOR DECISION

On 8 June 2016 an original tribunal ordered that Krown Living Pty Ltd (Krown) pay $9,712.32 to Gordon Lando in relation to work done by him under a contract.[1] The decision is referred to as the ‘original decision’. Krown has applied for leave to appeal the original decision out of time. Its application is refused because the explanation for its failure to file the application for appeal on time is vague, I cannot be satisfied that there is an arguable case for appeal or that justice demands that an appeal be allowed to proceed. Having regard to the importance of finality of litigation and the need to respect time limits, it is not appropriate to extend time to appeal.

Principles of Law

[1] The tribunal’s decision is reported as Gordon Lando v Krown Living Pty Ltd & Ors [2016] ACAT 60

Section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) allows a party to appeal against a decision made by an original tribunal on a question of fact or a question of law. Appeals are considered within the tribunal by an appeal tribunal.[2] A notice of appeal must be filed no later than 28 days after the date that a decision is made.[3] If time runs out, leave (or permission) has to be sought.[4]
[2] Section 81, ACAT Act
[3] Rule 14,…

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: [2016] ACAT 149
Decision Date: 19 December 2016

CaseChat Overview and Summary

Krown Living Pty Ltd, an appellant, sought leave to appeal out of time against a decision made by Lando, the respondent, which was a Tribunal. The appeal pertained to a dispute regarding the enforcement of a security interest in relation to a property transaction. The legal issues the court was required to decide included whether the Tribunal had the authority to grant leave to appeal out of time, and if the appellant had demonstrated any arguable grounds of appeal or a miscarriage of justice.

The court considered the principles governing applications for leave to appeal out of time, emphasising the importance of finality, respect for time limits, and the potential prejudice to the other party. The court noted that the appellant had not produced any material to support the original application and had failed to identify any arguable questions of fact or law. Additionally, no arguable grounds of appeal were identified, and the appellant did not demonstrate a miscarriage of justice. The court concluded that the appellant had not met the necessary criteria for leave to appeal out of time, and the application was refused.

The Tribunal ordered that the application for leave to appeal out of time was dismissed. This decision highlights the importance of adhering to time limits in legal proceedings and the stringent requirements for obtaining leave to appeal out of time.

Orders

Orders of the court

The Tribunal orders that:

1. The application for leave to appeal out of time is dismissed.

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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