Manny v Nissen - [2022] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Manny v Nissen
Citation:	[2022] ACTSC 41
Hearing Date:	11 February 2022
DecisionDate:	11 March 2022
Before:	Mossop J
Decision:	See [51]
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal a decision of the ACT Civil and Administrative Tribunal – no arguable case of a denial of procedural fairness – no sufficiently arguable case of appellable error – no arguable ground of appeal – application for leave to appeal dismissed with costs
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 8, 26, 79, 86(4) Residential Tenancies Act 1997 (ACT), s 6A, sch 1
Cases Cited:	Manny v Shiels [2013] HCASL132 P and W v Manny and Jeff Manny Pty Ltd [2010] ACTSC 50 Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283 Shiels and Shiels v Manny and Jeff Manny Pty Ltd [2010] ACTSC 58 Shiels v Manny and Manny Pty Ltd [2012] ACTCA 22
Parties:	J Manny (Applicant) B Nissen (Respondent)
Representation:	Counsel Self-represented (Applicant) R Patrick (Respondent)
Solicitors Self-represented (Applicant) Gil-Jones Barker Solicitors (Respondent)
File Number:	SCA 33 of 2021
Decision under appeal:	Court/Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member Daniel Date of Decision: 9 September 2021 Case Title: Manny & Anor v Nissen Court File Number: AA 9/2020 (RT 633/2019)

MOSSOP J:

Introduction

Jeff Manny has applied for leave to appeal against orders of the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT) made on 9 September 2021. That application is brought as a consequence of the requirement to obtain the leave of the Supreme Court in relation to an appeal: s 86(4) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). By the time of the hearing of the application, Mr Manny relied upon a draft Notice of Appeal dated 9 February 2022.

The proceedings in the ACAT were proceedings brought by Mr Manny and his wife under the Residential Tenancies Act 1997 (ACT) against a former landlord. The applicants contended that they had a fixed term lease of the property and that they were entitled to compensation arising out of their unlawful eviction from the premises, as well as compensation for certain breaches of their lease.

Most of the claims made by Mr Manny were rejected by the Tribunal at first instance (the Original Tribunal) but the lessor was ordered to pay $300 to the tenant before 27 March 2020. That order related to a failure on the landlord’s part to repair some curtains on the premises.

Mr Manny and his wife appealed within the Tribunal pursuant to s 79 of the ACAT Act. On appeal, the Tribunal (the Appeal Tribunal) dismissed the appeal and confirmed the orders made by the Original Tribunal. The Appeal Tribunal gave its decision and oral reasons on 9 September 2021. It provided written reasons, which were a corrected version of the transcript, on 2 December 2021.

Leave to appeal

Appeals under s 86 of 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.

Continue reading Manny v Nissen

Details

AGLC: Manny v Nissen [2022] ACTSC 41
Case: [2022] ACTSC 41
Decision Date

CaseChat Overview and Summary

Jeff Manny has applied for leave to appeal against orders of the ACT Civil and Administrative Tribunal (ACAT) made on 9 September 2021. The orders were made in proceedings brought by Mr Manny and his wife under the Residential Tenancies Act 1997 (ACT) against a former landlord. The applicants contended that they had a fixed term lease of the property and that they were entitled to compensation arising out of their unlawful eviction from the premises, as well as compensation for certain breaches of their lease. Most of the claims made by Mr Manny were rejected by the Tribunal at first instance but the lessor was ordered to pay $300 to the tenant before 27 March 2020. Mr Manny and his wife appealed within the Tribunal pursuant to s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). On appeal, the Tribunal dismissed the appeal and confirmed the orders made by the Original Tribunal. Mr Manny has applied to the Supreme Court for leave to appeal the decision of the Appeal Tribunal. The application for leave to appeal is dismissed with costs. The reasoning of the court was that there was no sufficiently arguable case of a denial of procedural fairness or of appellable error. The matters raised in the draft Notice of Appeal did not disclose a sufficiently arguable case that the decision is vitiated by denial of procedural fairness arising by reason of an apprehension of bias to warrant a grant of leave to appeal. Further, if, notwithstanding the form of the grounds in the draft Notice of Appeal, they are considered to involve, instead of an allegation of denial of procedural fairness, a direct assertion of error on the part of the Appeal Tribunal, the grounds of appeal were not sufficiently arguable to warrant a grant of leave to appeal.

Orders